By Aimee Elia - 9 Jul 2020
Employers who were unable to access their premises during
level 4 lockdown had to grapple with their obligations to employees
who were unable to work from home. Many sought advice on this
either directly from legal professionals or from the flurry of
information that was flooding the online employment sphere at the
time.
Unfortunately, the messages received were not always uniform. In
particular, the concept of "ready, willing and able" was
tested. Some advisors took the position that employees who were
"unable" to enter the workplace due to the lockdown restrictions
were not entitled to be paid. Others took the opposing view and
advised that such workers were entitled to be paid as, but for the
lockdown, they were otherwise "able" to work.
On 30 June the Employment Relations Authority published a
decision in the case of Raggett & Ors v Eastern Bays
Hospice Trust which came down firmly on the side of paying
wages to employees who found themselves unable to work due to the
lockdown restrictions on the grounds that: "but for the
intervening event of COVID-19, the employees were able to fulfil
their obligations under the employment agreements".
The Authority's decision affirms the advice given by Martelli
McKegg during the lockdown and unless an appeal authority finds
differently, we recommend that employers adopt this position going
forward should another lockdown occur or if any other event
prevents employees from accessing the workplace.
However, should the need arise, you should look first to the
terms of your individual employment agreements to ascertain whether
or not the express terms of the agreement provide for the situation
you are faced with. If not, then we suggest you follow the lead of
the Authority and pay your employees in accordance with the terms
of the employment agreement, or as varied by agreement following
consultation.
If you require advice on any of these issues, please contact Aimee Elia.