The categories of employment status in Ireland are employed and self-employed/contractor. There is no comprehensive statutory or common law definition of an employee or self-employed/contractor in Irish law. The decision on employment status is reached by looking at what the employee does, how they do it and the terms and conditions of employment. Courts will look behind the documents governing the engagement and will consider the true relationship between the individual and the employer. A number of tests have been developed and applied by the courts to ascertain if a person is an employee or independent contractor, including:

• mutuality of obligations;
• the control test;
• the integration test;
• the multi-factorial test; and
• the enterprise test.

There are different types of employment contracts, including contracts of indefinite duration, fixed-term contracts, specific-purpose contracts, part-time contracts and contracts for casual and agency workers.

A contract of employment is governed by the common law principles of contract. Therefore, there must be an offer, acceptance, consideration and intention to create legal relations. Contracts may be concluded orally, however, written contracts are market standard in Ireland. Certain terms are implied into employment contracts, whether or not they are expressly included in writing. For example, there is an implied mutual obligation of trust and confidence that must exist between the employer and the employee. A statutory minimum period of notice will also be implied into the employment contract if there is no contractual notice, or if contractual notice is less than the statutory minimum. Contractual terms may also be implied by custom and practice.

There is a statutory requirement that certain terms and conditions of employment are provided in writing, as set out below. The Terms of Employment (Information) Acts 1994 to 2014 state that employers are obliged to provide employees with key terms and conditions of employment within five days of commencing employment. The terms and conditions that must be provided are:

• The full name of the employer and employee;
• The address of the employer;
• The expected duration of the contract (where the contract is temporary or fixed-term);
• The rate or method of calculating pay; and
• What the employer reasonably expects the normal length of the employee’s working day and week will be.

If an employer does not comply with this requirement, they may be guilty of an offense and liable to a fine of up to €5,000 and/or a term of imprisonment up to 12 months. 

Employees with one month's service may claim up to four weeks’ compensation for this breach. An employer must also give an employee a more comprehensive written statement of his or her terms of employment within two months of the commencement of employment. If an employer does not comply with this requirement, employees are entitled to up to four weeks’ compensation.

The written statement of terms must contain the following:

• place of work;
• job title;
• commencement date, expected duration of the contract (if temporary) and expiry date (if fixed term);
• reference to any registered employment agreement or employment regulation order that applies to the employee;
• that the employee may request a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section;
• the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval;
• any terms or conditions relating to the hours of work (including overtime);
• any terms or conditions relating to paid leave (other than paid sick leave);
• any terms or conditions relating to:
• incapacity for work due to sickness or injury and paid sick leave; and
• pensions and pension schemes;
• the period of notice the employee is required to give and entitled to receive to determine the employee’s contract of employment or, the method for determining such periods of notice; and
• a reference to any collective agreements that directly affect the terms and conditions of the employee’s employment.

Part-time employees are afforded the same rights as full-time employees. Under the Protection of Employees (Part-Time Work) Act 2001, part-time employees cannot be treated less favorably than comparable permanent employees unless the employer can objectively justify the different treatment. However, a part-time employee who normally works less than 20 percent of the normal hours of the comparable full-time employee can be treated in a less favorable manner with regard to a pension scheme or arrangement.

Employment contracts cannot be assigned under common law. However, in circumstances where a company is transferred by way of asset purchase, the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“TUPE Regulations”) apply, and the contract of employment is assigned to the transferee. The Regulations apply to any transfer of an undertaking, business or part of an undertaking or business from one employer to another employer as a result of a legal transfer or merger.

Where a company is transferred as a going concern, the transfer of an employee from the transferor to the transferee is automatic, subject only to the right of an employee to object to a transfer of his or her employment relationship. Any objection by the employee to the transfer is treated as a resignation.

Furthermore, the Irish courts have found that where an employee objects to the transfer, the employee has no entitlement to a redundancy payment from the transferor after the transfer has taken effect.

There are no statutory rights for employees on a change of control of an employer. Rights remain the same as there is no change of employer in terms of the contractual relationship.

Employers cannot unilaterally alter the terms and conditions of employment. Changes must be agreed upon with employees and/or their representatives. While a work practice may be changed by an employer unilaterally, a contractual term may not be altered without an employee’s agreement.

While some contracts of employment contain a clause that expressly reserves the employer’s right to make amendments to an employee’s contractual terms and conditions of employment, a variation clause must be exercised reasonably at all times. Such a clause does not give an employer absolute discretion to unilaterally reduce employees’ salaries and cannot be used oppressively. While employees' agreement may be express or implied, tacit or by acquiescence, if the variation relates to for example a reduction in salary which is a fundamental contractual term, it would obviously be recommended that employees’ agreement to such reduction be expressed and in writing.

Changes to work practices or any change in the statement of employment, as distinct from terms and conditions of employment, must be notified to the affected employee in writing no later than one month after the particular change takes effect. If an employer unilaterally changes the terms of employment, the employee may make a complaint to the Workplace Relations Commission. The employee could claim that the position is untenable and as such make a claim for constructive dismissal, or make a claim under the Payment of Wages Act 1991 for unlawful deduction or industrial relations claim. It is also open to the employee to claim for breach of contract in the civil courts and seek injunctive relief.

Ireland is not an employment-at-will jurisdiction.

An employer may lawfully terminate an employment contract on notice without giving a reason. However, if an employer terminates for no reason, there is a significant risk that an employee may be successful in a claim for unfair dismissal at the Workplace Relations Commission, wrongful dismissal in the civil courts, or in seeking an injunction for breach of contract. Therefore, it is recommended that when exercising termination rights, the employer dismisses an employee on notice and relies on one or more of the following grounds to justify dismissal; capability, competence, qualifications, conduct, redundancy, contravening the law or other “substantial grounds.”

Furthermore, the employer must follow fair procedures and abide by the principles of natural justice in terminating employment. The employee’s rights to fair procedures and natural justice derive from their constitutional rights to fair process and to a good name, therefore these rights are carefully protected under Irish law. In approaching any potential dismissal, an employer should always ensure that:

• allegations are appropriately investigated by an impartial party before a decision is made to proceed to a disciplinary hearing;
• the respondent employee is permitted to be accompanied to meetings;
• the respondent can make appropriate submissions in relation to any allegations;
• the disciplinary sanction (if any) imposed is proportionate; and
• there is a right of appeal in relation to any disciplinary sanction.

At a minimum, employers must give employees the following statutory periods of notice:

• 13 weeks to 2 years -1 week
• 2 years to 5 years - 2 weeks
• 5 years to 10 years - 4 weeks
• 10 years to 15 years - 6 weeks
• 15 years or more - 8 weeks

If the employee’s contract of employment provides for notice in excess of the statutory period, the contractual notice must be adhered to. Payment in lieu of notice is permitted if it is provided for in the contract of employment. If an employee’s employment is terminated for gross misconduct, an employer is not obliged to provide notice or payment in lieu of notice. 

In circumstances of dismissal without cause or wrongful termination, an employee may be entitled to bring an unfair dismissal claim in the Workplace Relations Commission or seek an injunction for breach of contract. An employee may also be entitled to bring an industrial relations claim.

Employees with at least one year’s service have statutory protection from unfair dismissal. In cases of unfair dismissal on the grounds of discrimination or for having made a protected disclosure, the one-year service requirement does not apply. Employees can argue that they were unfairly dismissed on the basis of procedural flaws and/or lack of substantial grounds for dismissal. The Unfair Dismissals Acts 1977 – 2015 (the "UD Acts") specify that dismissals are presumed to be unfair unless they result from capability, conduct, redundancy, contravention of the law or some other substantial reason. An employee is also entitled to fair procedures and natural justice in relation to their dismissal.

Under the UD Acts, dismissals are automatically unfair if they relate wholly or mainly to:

• Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours;
• Religious or political opinions;
• Legal proceedings against an employer where you are a party or a witness;
• Race, color, sexual orientation, age or membership of the Traveller community;
• Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth;
• Availing of rights under legislation to maternity leave, adoptive leave, paternity leave, carer’s leave, parental leave or force majeure leave;
• Unfair selection for redundancy; or
• Making a protected disclosure (that is, where you raise concerns about possible wrongdoing at work) under the Protected Disclosures Act 2014 (as amended).

An employee is entitled to up to two years’ remuneration as compensation for unfair dismissal. Compensation is calculated on the basis of an employee’s loss and the employee has a duty to mitigate his or her loss, for example, by sourcing alternative employment. An employee may also go to the civil courts for a breach of contract seeking an award of damages, or seek injunctive relief restraining the dismissal.

There is legislative protection for whistleblowers under the Protected Disclosures Act 2014 (commonly referred to as “the Whistleblower’s Act”). The purpose of the Act is to protect workers in both the public and private sectors against reprisal in circumstances where they disclose information in relation to certain wrongdoings which come to their attention during their employment. Significant changes to enhance the protections for whistleblowers were introduced by the Protected Disclosures (Amendment) Act 2022 (the "2022 Amendment Act") which transposed into Irish law the EU Whistleblowing Directive. 

There is an obligation on all private sector organisations with 50 or more employees to establish formal channels and procedures for their employees to make protected disclosures.  The threshold of 50 employees does not apply to employers who are public bodies or who fall within the scope of certain European Union acts, including in relation to financial services, products, markets, prevention of money laundering and terrorist financing, transport safety, and protection of the environment. Such employers, regardless of size, must comply with these obligations. 

In order to qualify for protection under the Whislteblower's Act, an individual must come within the definition of "worker".  The definition of "worker" includes: an employee, (including former and temporary employees), contractors, sub-contractors, consultants, self-employed, agency workers, interns, unpaid trainees, volunteers, board members, shareholders, members of administrative, management or supervisory bodies, job applicants and members of the Permanent Defence Force and the Reserve Defence Force.

The Act protects workers who make disclosure of “relevant information” through a pre-determined channel of disclosure, referred to as a “protected disclosure”. “Relevant information” is information that in the reasonable belief of the worker, tends to show one or more "relevant wrongdoings". This relevant information must come to the worker’s attention in connection with his or her employment.

The Whistleblower's Act sets out what types of wrongdoing qualify as relevant wrongdoing and this covers an extensive range of acts:

• That an offence has been, is being or is likely to be committed;
• That a person has failed, is failing or is likely to fail to comply with any legal obligation other than one arising under the worker’s contract of employment or another contract whereby the worker undertakes to do or perform personally any work or services;
• That a miscarriage of justice has occurred, is occurring or is likely to occur;
• That the health or safety of any individual has been, is being or is likely to be endangered;
• That the environment has been, is being or is likely to be damaged;
• That an unlawful, or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur;
• That an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement;
• Breaches of EU law (listed in the 2022 Amendment Act); or
• That information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or where an attempt has been, is being or is likely to be made to conceal or destroy such information. 

The Act protects employees from dismissal, penalization and civil proceedings (save from defamation proceedings).

Internal reporting channels and procedures 

For those organisations within the scope of the amendments introduced by the 2022 Amendment Act, strict timeframes for responding to protected disclosures have been introduced. Employers and “prescribed persons” (which are regulatory and oversight bodies designated to receive protected disclosures) are required to (a) acknowledge receipt of a protected disclosure within 7 days, (b) follow up on the information contained within the disclosure and (c) provide feedback to the person who made the disclosure on the actions taken, or to be taken, within 3 months.

The Act protects workers who fall within its scope, from dismissal, penalisation and civil proceedings (save for defamation proceedings). If an employee suffers penalisation as a result of making a protected disclosure, the employee can apply to the Circuit Court for interim relief within 21 days immediately following the date of the last act of penalisation by the employer.  A claim for penalisation may also be brought before the Workplace Relations Commission within 6 months of the penalisation complained of.  The maximum award of compensation is 260 weeks' / five years' remuneration (or €15,000 if not in receipt of remuneration eg. volunteer).

Burden of Proof

The burden of proof has been reversed in civil cases concerning the penalization of whistleblowers in both the WRC and the courts.  It is presumed that the alleged penalization was imposed as a result of the worker’s protected disclosure. It is the responsibility of the employer to prove otherwise. 

In 2023, a Protected Disclosures Office was established within the Office of the Ombudsman to:

1. handle protected disclosures made to ‘prescribed persons’
2. provide support to Ministers who have received protected disclosures; and
3. handle protected disclosures made to the Office with no suitable authority to follow up directly.

Ireland has no comprehensive privacy law. However, there is a significant amount of protection given to employees’ privacy, mainly through the Data Protection Act 2018 and the General Data Protection Regulation (“GDPR”) which regulates the processing, and retention, of employee personal data.

The Acts provide that personal data must be:

• processed fairly and lawfully;
• collected and processed for one or more specified, explicit and legitimate purposes;
• adequate, relevant and not excessive;
• accurate and up to date;
• kept in a form that permits the identification of a data subject for no longer than is necessary;
• processed in accordance with the rights of the subject of the personal data;
• protected with appropriate security measures; and
• kept within the EEA, unless the recipient ensures adequate data protection.

The right to privacy is also protected by the Irish Constitution and under Article 10 of the ECHR. An employee can pursue a civil claim for damages against an employer arising from their failure to meet their obligations under the Data Protection Act 2018, for example for the unlawful processing or disclosure of personal data, or claim a breach of their rights under the Constitution or the ECHR.

Employees are afforded anti-discrimination protection under the Employment Equality Acts 1998 to 2015, which specifically relates to discrimination in the workplace. The Acts prohibit discrimination by an employer against employees and prospective employees in relation to all aspects of employment and specifically in relation to:

• access to employment (including offering employment, setting entry requirements for a particular role, and advertising).
• conditions of employment (including setting terms of employment, working conditions and overtime, shifts, lay-offs redundancies, dismissals and disciplinary measures)
• training or experience for or in relation to employment (including access to opportunities or facilities for employment counseling, training and work experience)
• promotion or re-grading, (including offering opportunities for promotion, or access to those opportunities in the same way as other employees) or
• classification of posts.

There are nine prohibited grounds of discrimination under the Acts: gender; civil status; family status; race, color national or ethnic origin; age; sexual orientation; religion; disability or membership of the Traveller community (a specific nomadic culture in Ireland). Any act or omission that results in a person being treated less favorably than another on one of the nine discriminatory grounds constitutes direct discrimination.

Discrimination can also be indirect, which arises when an employer applies a particular condition to all employees that puts certain employees at a disadvantage because of one of the discriminatory grounds. Indirect discrimination may be objectively justified by showing that it is a proportionate way of achieving a legitimate aim.

An employee can bring a complaint of discrimination to the Workplace Relations Commission. If the claim of discrimination relates to gender, the complainant can choose to initiate the complaint in the Circuit Court instead of the Workplace Relations Commission. In both cases, complaints must be initiated within 6 months from the most recent date of discrimination. The Circuit Court or the Workplace Relations Commission may extend the time frame by up to a further six months for reasonable cause.

The following types of remedies are available:

• An order for compensation for arrears of remuneration for up to 3 years before the initiation of the complaint before the Workplace Relations Commission, or up to 6 years before the initiation of the complaint before the Circuit Court;
• An order for equal remuneration or equal treatment;
• An order for compensation for the effects of discrimination or victimization for the period of 6 years before the initiation of the complaint; 
• An order for reinstatement (i.e. that the employee is permitted back into the role that they held prior to the act of discrimination with payment backdated) or re-engagement (i.e. the employee is re-engaged in a comparable role without back-payment). Both reinstatement and re-engagement can be accompanied by an order for compensation.

Compensation for the effects of discrimination is subject to a maximum of the greater of 104 weeks’ remuneration or €40,000. If the complainant was not an employee (e.g. claims in relation to access to employment), compensation is subject to a maximum of €13,000.

Heads are currently in preparation to amend the Employment Equality Acts arising from a 2023 Review of the Equality Acts. 

There is a statutory entitlement to vacation, or holiday, leave. The Organisation of Working Time Act 1997 provides for a minimum period of four working weeks’ annual leave or is calculated on a pro-rata basis if the employee has not worked the full year. This statutory entitlement is in addition to the nine public holidays in Ireland. Annual leave may be subject to the employer’s approval in relation to when the leave may be taken.

Employees on long-term sick leave continue to accrue statutory annual leave entitlements subject to a maximum carryover period of 15 months after the end of the year in which the entitlement accrued.

From January 2023, employees have been entitled to statutory sick leave under the Sick Leave Act 2022.  The number of days will increase on a phased basis.  From 1 January 2024, employees are entitled to five days of statutory sick leave, increasing to seven days (2025) and ten days (2026). An employee who is incapable of work due to illness or injury is entitled to statutory sick leave. 

Qualifying employees are entitled to a statutory sick leave payment from their employer for each statutory sick leave day.  The employee must provide their employer with a medical certificate signed by a registered medical practitioner stating that they are unable to work.

The rate of pay for each statutory sick leave day is 70% of an employee’s normal gross daily pay, capped at €110 per day.  

If an employee is on long-term sick leave or has an illness, they may be considered to have a disability for the purposes of the Employment Equality Acts 1998 to 2015. In such circumstances, the employer cannot discriminate against the employee and if required, must provide reasonable accommodation to the employee to facilitate their return to work/continuation of work.

There is a statutory entitlement to parental leave under the Parental Leave Acts 1998 to 2019. Since September 2020, an employee who is the natural or adoptive parent of a child, or in loco parentis, is entitled to an unpaid leave of up to 26 working weeks to enable him or her to take care of the child up to their 12th birthday. If the child has a disability, parental leave can be taken up to the child’s 16th birthday. This leave may be taken in: one block of 26 weeks; two separate blocks of not less than six weeks each; and/or in another manner agreed upon by the employer and the employee e.g. one day a week.

Under the Parent’s Leave and Benefit Act 2019 (as amended) parents are entitled to seven weeks’ paid parent’s leave during the first two years of a child’s life. This will increase to seven weeks in August 2024.  Where a child is adopted, the parent’s leave can be taken within 2 years of the child’s placement with the family. This is in addition to ordinary and additional maternity leave, and two weeks paternity leave. This parent’s leave is paid at the State benefit rate, which is currently €274 a week.

Leave for medical care purposes 

From 3 July 2023, eligible employees are entitled to leave for medical care purposes. This leave is for up to five days in any 12 consecutive months if the employee needs time off to deal with serious medical care or support for their child or certain specified persons (including spouse/civil partner, cohabitant, parent or grandparent, brother or sister or person who resides in the same household as an employee). This leave is unpaid and is set out in the Parental Leave Acts 1998 to 2023. 

Domestic violence leave 

From 27 November 2023, eligible employees are entitled to paid domestic violence leave following an amendment to the Parental Leave Acts 1998 to 2023. Employees are entitled to up to five days paid leave in a 12-month period and there is no mandatory service requirement to avail of the leave.  The leave is on full pay and is paid by the employer. 

The leave is to enable employees experiencing domestic violence to:

• seek medical assistance;
• obtain services from a victim services organization;
• obtain counseling;
• relocate temporarily or permanently;
• seek legal advice or assistance;
• seek assistance from the Garda Síochána; or
• obtain a safety order from the courts. 

Eligibility for domestic violence leave extends to an employee who is assisting a relevant person to access or obtain the support outlined above.  A relevant person includes a spouse, dependent child, or cohabitant. 

Restrictive covenants are recognized in Ireland but will only be enforceable if their terms are considered reasonable between both the general public and the parties involved. For the purposes of determining the reasonableness, or otherwise, of a restrictive covenant Irish courts have traditionally considered the subject matter of the restriction, its geographic scope and its temporal effect. An employer must also have a legitimate interest in the matter being protected by the terms of the restrictive covenant.

The longer the duration of the clause and the broader the geographical area under consideration, the heavier the burden on an employer to demonstrate that the restraint is reasonable. This is ultimately dependent on the particular facts of the case. In general terms, the maximum period for a restrictive covenant to be applicable - though dependent on the circumstances - will generally be between six and twelve months. It should be noted that there may be exceptions to this. Furthermore, the employer should limit the geographical scope of any non-competition clause to only apply to areas where the employer realistically has a presence.

Generally, restrictive covenants in contracts of junior employees or employees who are not practical in a position to solicit employees or customers of the company or who are not in a position to compete with the company will not be enforceable.

Employees cannot be terminated for refusing to sign a restrictive covenant. Any change to an employment contract will be subject to the usual laws of the contract.

Under Irish legislation, an employer is not obliged to provide employees with a pension scheme. However, an employer is obliged to facilitate access to an individual Personal Retirement Savings Account ("PRSA") contract or an occupational pension scheme within 6 months of the commencement of an employee's employment. The employer is required to deduct contributions from the employees' pay and remit to the PRSA but is not required to make employer contributions (but may do so if they wish).

There are no mandatory benefits in the Irish jurisdiction.

There is no statutory retirement age for employees in the private sector. The majority of employees in the public sector have a mandatory retirement age of 70.

All employees who have the requisite social insurance contributions are entitled to receive a pension from the State from age 66. 

Employers may impose a mandatory retirement age. However, it must be objectively and reasonably justified by a legitimate aim and the means of achieving that aim must be appropriate and necessary. Employers commonly cite the following as grounds for imposing mandatory retirement ages:

• Intergenerational fairness
• Succession planning;
• Health and safety concerns;
• Establishing an age balance in the workforce; and
• Encouraging recruitment/ promotion of younger people.

There is a Code of Practice on Longer Working that sets out the best industrial relations practice in managing the relationship between employers and employees when an employee is approaching retirement. This Code of Practice is now binding pursuant to SI 600/2017.

An employer cannot withdraw access to pension arrangements entirely. At a minimum, an employer must provide access to an individual Pension Retirement Savings Account ("PRSA") contract even if work beyond retirement.

Ceasing pension accrual, contributions or insured benefits with respect to employees who work beyond retirement age runs the risk of potential exposure to age-related discrimination claims. It may be straightforward to continue pension contributions or accrual – subject to the provisions of the governing document. However, in practice, employers may find it difficult to ensure risk benefits (income continuance, death in service) with respect to employees beyond retirement age.

It is not possible to make the COVID-19 vaccine mandatory for employees. There is currently no Government guidance or regulation compelling individuals to take the vaccine in Ireland with no indication that this position will change in the future.  As a result, employers have no legal basis to compel their employees to be vaccinated against COVID-19.

In addition, Ireland has implemented a Work Safely Protocol which provides guidance to employers on reducing the spread of COVID-19 in the workplace. This Protocol emphasizes that an employee’s decision to get vaccinated should be voluntary.

The legal risks arising from the imposition of a mandatory vaccination requirement by an employer include claims before the civil courts under the Irish Constitution and/or the European Convention of Human Rights that the practice constitutes a breach of personal rights, such as the right to bodily integrity, privacy and autonomy, or a breach of contract under the implied term of mutual trust and confidence.  Complaints may also be made to the Workplace Relations Commission that the practice constitutes unlawful discrimination under the Employment Equality Acts 1998 – 2015 on the basis of a medical condition, pregnancy, disability, or religion.

In some industries, it may be important for certain employees to be vaccinated based on their job description/ role e.g. lab workers.  In this regard, the employer may need to carry out a specific biological agents’ written risk assessment under the Code of Practice for the Safety, Health and Welfare at Work (Biological Agents) Regulations 2013 and 2020 (the “2020 COP”). However, the Work Safely Protocol expressly provides that a worker does not have to accept the offer of vaccination following a 2020 COP risk assessment.

In the event that an employee does not wish to take the vaccine, it is recommended that the employer engages with the employee and considers alternative measures such as redeployment to another role.  The employer should also bear in mind that there may be different reasons why an employee chooses to refuse the vaccine and will need to consider its obligations under the Employment Equality Acts to determine if reasonable accommodation should be made

If no accommodations can be made for an employee and redeployment is not a feasible option, the employer may need to consider whether there is a sufficient basis to dismiss the employee on grounds of capability, or on the basis that the employee is unable to discharge the core functions of their role.  An internal process would have to be followed through before a decision to dismiss on this basis could be followed.  In addition to the litigation risks outlined above, an employee could bring a claim to the Workplace Relations Commission under the Unfair Dismissals Acts 1977-2015 challenging a decision to dismiss.  These hearings are held in public, and the remedies include compensation of up to 2 years’ remuneration, reinstatement and re-engagement.

The Government has indicated that it may be possible for some non-essential workers to return to their workplaces from August 2021. However, the current public health advice remains that persons should continue to work remotely unless it is necessary to attend in person. The Work Safely Protocol also provides that all staff should continue to work from home to the greatest extent possible. This is likely to be construed strictly by relevant authorities (such as the Health and Safety Authority), particularly in circumstances where employers have been successfully operating on a remote working basis.

Employers must implement the Work Safely Protocol to limit the spread of COVID-19 in the workplace by adopting control measures such as the use of PPE and face masks in crowded spaces, ensuring adequate ventilation throughout the workplace and maintaining social distancing where possible.

All employees should be allowed to attend the office to work regardless of whether they have received the vaccine or not. As above, if an employee refuses to return to the office, the employer should first consider alternative options that would alleviate their concerns such as remote working or redeployment. If these measures are not viable options,  the employer will need to consider whether there is a sufficient basis for dismissing the employee on capability grounds, or because the employee is no longer in a position to discharge the core functions of the role if their presence in the workplace is required. An internal process would need to be followed, and completed before a decision to dismiss on this basis is made.