Law Society of Ireland’s Gender Equality, Diversity and Inclusion Charter

J.W. O’Donovan Solicitors has pledged its name to the Law Society of Ireland’s Gender Equality, Diversity and Inclusion Charter. By pledging our name to the Charter, we are committed to promoting gender equality, diversity and inclusion for the benefit of all members of the solicitor’s profession, trainees, staff, clients and the wider public at large.

At J.W. O’Donovan, we are committed to treating individuals and groups fairly, in light of their particular needs, in areas of gender, civil status, family status, sexual orientation, religion, age, race, class, disability or membership of the Traveller Community. In this, J.W. O’Donovan will: –

  • Recognise the individual needs of our employees and support them to develop to their full potential.
  • Ensure equal access to opportunities for all of our employees.
  • Ensure our policies, procedures and processes promote gender equality, diversity and inclusion.
  • Carry out our work without bias, in a respectful and non-discriminatory manner.
  • Build awareness and understanding of the benefits of promoting gender equality, diversity and inclusion.

Ciara McDonnell, Partner, leads the commitment to the Charter in J.W. O’Donovan. Should you be aware of an event or measure that we could engage with to further advance the goals of the Charter, please contact Ciara McDonnell by email at cmcdonnell@jwod.ie.

For more information on the Law Society’s Charter, please see: https://www.lawsociety.ie/Solicitors/Running-a-Practice/diversity-and-inclusion/

Explained: Enduring Power of Attorney

It is part of the human condition to believe we might be the ones to escape ill-health, infirmity, mental and physical incapacity. However, if misfortune should strike – whether through illness, an accident or elder infirmity – is it not preferable that we would each have chosen a person who we trust  to be the guardian of our best interests if we are no longer capable of doing so for ourselves. Whilst the EU and UK recently wrangled and posturized about a ‘backstop’ of wholly different proportions, executing an Enduring Power of Attorney is a choice and provision each of us can make to protect ourselves, our interests and our assets into the future.

An Enduring Power allows you to choose a person or persons to manage your property, financial affairs and/or personal care decisions should you ever become mentally incapable of doing so.

The person or persons you choose to act on your behalf are known as Attorneys and, although you are free to appoint a number of Attorneys, one has to be conscious of practical difficulties and differing opinions when a number of individuals are involved. Further, in choosing your Attorney(s) you should be confident of their trustworthiness and in their skills to manage both your assets and personal care decisions whilst being mindful of the responsibility you will be placing upon them.

The Enduring Power may give a general authority to your Attorney(s) to do all lawful acts on your behalf or it may limit authority to specific acts or particular assets. It may include financial decisions such as responsibility for your income or pension, any business(es) you may be involved in, shares you hold, your property, payment of bills and/or investing your money. The duties may also be extended to permit your Attorney(s) to make Personal Care choices for you including decisions on where you might live, the training or rehabilitation you receive and housing, social welfare and other benefits for you . The scope of the powers granted to an Attorney and any limitations thereon should be determined by you, your own wishes and circumstances and therefore it is important that the Enduring Power is tailored to your individual requirements.

Upon the initial appointment of your Attorney(s), they do not possess any immediate power, rights or authority over your assets or affairs and indeed will not ever have such authority unless or until you become mentally incapacitated and the Enduring Power is activated. The Enduring Power is activated once it is successfully registered in the Wards of Court Office. The legislation goes to significant lengths to provide sufficient safeguards to ensure an Attorney cannot register the Power and assume control of your affairs without legitimate cause and unless a Medical Doctor certifies you are, or are becoming, mentally incapable of managing your affairs . You will be notified that any such steps are being taken.

One of the additional safeguards is that at the execution of the Enduring Power, you will have chosen a minimum of two persons to act as your Notice Parties. The role of these Notice Parties is that they must be notified if the Attorney(s) ever seeks to register the Enduring Power and take over the management of your affairs. Should such an application for registration ever proceed, it is open to the Notice Parties to object if they believe same is not in your best interests at that time or if they believe the Attorney is no longer suitable for such a role.

A further part of the human condition is that circumstances and lives change over time or we simply just change our mind. It is therefore reassuring to note that the Enduring Powers may be revoked at any time up until same is registered and whilst you have mental capacity to so do. To that extent, these Powers can evolve with your life and allow for  new Attorneys, adapted circumstances or wishes.

For those individuals that choose not to execute an Enduring Power of Attorney there is some comfort that the law still provides a procedure to step in and protect an individual and their assets in the event they become incapacitated. This is achieved by an application before the President of the High Court to make an individual a Ward of Court, bring the assets of the Ward under the control of the Court and appoint a Committee to act on their behalf. The main grievances individuals appear to have with this procedure is the lack of control over decisions and assets as the Committee has no inherent authority or power – it may only do as the Court authorises and permits. Further as the Committee is appointed by the Court, it may or may not involve persons the incapacitated individual would have chosen to act on their behalf. Whilst this procedure is no doubt more cumbersome, lengthy and expensive than registering an Enduring Power it does at least ensure that for those who choose not to execute an Enduring Power they and their assets may still be protected during any period of incapacity or infirmity.

In reality, an Enduring Power of Attorney is executed with the hope that it will remain in the dusty confines of a Solicitor’s safe and never see the light of day but it is a document which is absolutely invaluable when needed and ensures that you have a say in your future no matter what that may hold.

Should you require any information please contact Niamh O’Connor of J.W. O’Donovan Solicitors, 53 South Mall, Cork or by email at noconnor@jwod.ie

The use of Trusts in Estate Planning

Estate planning can be described as planning for the transfer of assets to the future generations in the most tax efficient way, while talking account of the personal circumstances and the legal and moral obligations to dependants either by way of lifetime gift or will.

A trust is a legal instrument whereby a person (known as the ‘Settlor’) places ownership of assets under the control of another person (known as the ‘Trustee’) for the benefit of someone else (known as the ‘Beneficiary’) or for a specified purpose. A trust can be set up either by lifetime deed or by will.

Commonly used types of trust include:

  • Fixed Trusts in which each Beneficiary has a fixed entitlement to a specific share or interest in the trust property. For example, the Trustees might hold property equally between children of the Settlor to be paid to them upon reaching 25 years of age.
  • Interest in Possession Trusts, for example a life interest in the trust property. This type of trust may be appropriate in the context of a second relationship or marriage where the Settlor is anxious to provide for his or her new partner while at the same time protecting the assets for the benefit of his or her children.
  • Bare Trusts arise where property is held by the Trustees as nominees for the Beneficiary, for example an asset acquired by a parent for a minor child who, because of his or her minority, may not hold the assets directly.
  • Discretionary Trusts arise where the trust property is held by the Trustees on trust for the benefit of the members of a specified class of Beneficiaries. Effectively the trustees have a discretion as to which beneficiary will receive trust assets and when. The Beneficiaries have no interest in the trust fund for legal or taxation purposes. They merely have the right to be considered favourably by the trustees for an appointment of property or income from the trust fund.

Trusts in general and discretionary trusts in particular are very useful vehicles which can assist greatly in succession planning. They offer a large degree of flexibility in particular in providing for young children, beneficiaries with disabilities, vulnerable adult beneficiaries or situations where there are subsequent relationships.

Because the Beneficiaries of a discretionary trust have no interest in the trust fund the placing of assets in a discretionary trust does not give rise to a charge to Capital Acquisitions Tax (CAT). It is only when assets are appointed out of the trust to a particular Beneficiary that a charge to CAT arises.  Discretionary trusts are accordingly particularly useful for the following:

  • Ring-fencing and protecting certain assets.
  • To hold asset for young children (assets either passing on death or during lifetime).
  • Preserving assets for future generations – rather than passing all assets to the next generation only.
  • Providing for children with disabilities.
  • Providing for children who cannot manage their own affairs (for reasons other than a disability e.g. addiction).
  • Providing for a non-marital partner.
  • Maximising tax planning opportunities by allowing time to satisfy the conditions of various reliefs.

It is usual for the Settlor of a Discretionary trust to write a letter of wishes to the Trustees providing the Trustees with guidelines as to how he or she would like the trust fund to be distributed. While such a letter is not Binding on the Trustees, the Trustees will usually take into account the Settlor’s wishes. This is particularly useful in the case of trusts for very young children where it is difficult to know at the time creating the trust what their individual needs might be years into the future as it allows the Trustees flexibility in making fair and equitable provision for the children in light of each of their needs and circumstances.

Because the charge to CAT only arises when assets are appointed out of a discretionary trust such trusts were often used to defer the CAT liability. To counteract this Discretionary Trust Tax (DTT) was introduced in 1984.

The tax comprises an initial charge of 6% and an annual charge of 1%. If however the trust is wound up within a period of five years half of the initial charge is refunded, reducing it to 3%.

The charge to DTT in respect of a discretionary trust arises on the later of the death of the Settlor or the date on which there are no “principal objects” under the age of 21 years, principal objects being the spouse, children or minor children of a predeceased child of the Settlor. There are also, subject to certain conditions, exemptions available in respect of discretionary trusts for the benefit of persons with disabilities and vulnerable adults.

The charge to DTT will if the Settlor is dead arise when the youngest child turns 21. The charge could be avoided by appointing all of the assets out of the trust or changing the terms of the trust in advance of this. Alternatively, a view could be taken that the tax is a worthwhile cost in ensuring that a child does not come into significant assets at too young an age.

If you would like more information on this topic or on estate planning in general, please contact Patrick Bradley, Partner, by email at pbradley@jwod.ie.

When does a contract to sell or purchase a house become binding?

Booking Deposit

When a Purchaser has an offer on a house accepted by the Auctioneer on behalf of the Vendor the first step is that he pays what is known as a “booking deposit.”

This booking deposit does not impose any obligation on either the Vendor or the Purchaser and is “subject to contract” and fully refundable (until a binding contract is in place) if the Purchaser or the Vendor declines to progress with the sale.

Contract

Contracts are drafted by the Vendor’s Solicitors and typically (unless the contract provides otherwise) do not become binding until signed by both the Vendor and the Purchaser, the contract deposit (10% of the purchase price including the booking deposit) paid to the Vendor’s Solicitor and contracts exchanged by the parties.

Until contracts are signed and exchanged either party can withdraw from the sale at any point.   Any deposit paid will be refunded in this event.   The parties may have incurred legal and engineering fees which will of course require to be paid.

Once contracts are signed and exchanged both parties are bound to complete the purchase/sale and can be compelled to do so on foot of a court order for specific performance in default and/or forfeit the deposit paid.

Loan Clause

Many purchasers finance their purchase by way of mortgage.   In that event the contract should contain the standard Law Society special condition permitting the Purchaser to withdraw from the contract without penalty if they encounter any difficulty drawing down the mortgage.   This might arise for example where there is a change in the valuation of the property or the Purchaser cannot satisfy the Lender’s requirements regarding house insurance or life assurance.   If that occurs, and such a loan clause is provided within the Contract, the Purchaser is entitled to withdraw and to a full refund of the deposit.

Help to Buy Scheme

For first time buyers of new houses with Help to Buy Scheme approval this allowance is paid directly to the Builder as part of the contract deposit.  Therefore, the amount required to be paid by the Purchaser from their own funds is reduced accordingly.

Completion

Completion is provided for by the contract and typically is within 2-4 weeks from exchange of contracts.    However, a shorter period might be agreed or provided for in the contract especially for example if the property is vacant.

COVID 19 Crisis

Due to potential unavailability of third party services, for example the Property Registration Authority (Land Registry) and Companies Registration Office, normal conveyancing practice may be delayed and it has become common practice to include a special condition in the contract to ensure that neither the Purchaser nor the Vendor will be penalised for any delay outside their control.

 

In the event of any queries please contact Kim Walley from our Property Team at J.W. O’Donovan by email at kwalley@jwod.ie.

Corporate Rescue Through Examinership

In these difficult and uncertain times companies will be taking a forensic look at all options available to them in order to maximize cash-flow for the purpose of continuing trade.  Even where hard decisions are taken to keep the show on the road in the short term, some will look at the information gathered in their review and consider longer terms options to maintain the viability of their businesses.  One of these options may be to place the Company into Examinership.

 

What is Examinership

Examinership is a corporate recovery process which allows a company that is in financial difficulty but which has a sound underlying business model to apply to the courts for an examiner to be appointed. If the courts approve the petition for examinership, the examiner is appointed to the company with a view to formulating a proposal to ensure the company’s survival. During the period of the examiner’s appointment, the company is protected from its creditors.

 

The Examinership Petition

In order to petition for examinership, the company must be insolvent but it must have a reasonable prospect of survival and sufficient cash flow to trade during the period of the examinership.

Application is made to the court on an ex parte basis, without any notice being given to creditors or other interested parties. Save in exceptional circumstances, application must be supported by an Independent Expert’s Report which sets out the conditions needed for the company’s survival and must state that in the expert’s opinion the company (or part of its undertaking) has a reasonable prospect of survival if these conditions are met.

If the court is satisfied that statutory tests for the appointment of an examiner have been met, it will fix a date for a hearing to confirm the appointment of the examiner. Notice of the confirmation hearing must be given to creditors and other stakeholders so that they may support or oppose the examiner’s appointment. The period of court protection begins on the date of the initial ex parte application and application can be made for the examiner to be appointed on an interim basis pending the confirmation hearing.

 

The Examinership Process

The protection of the court runs for 70 days initially and can be extended on application to 100 days (but no longer). During the period of examinership, the directors of the company remain in place and carry on the day to day running of the company’s business.

Once appointed, the examiner will review the company’s affairs with a view to formulating a scheme of arrangement whereby the debts of the Company are settled, usually with a write down of debts owed to certain classes of creditors. This may include negotiating rent reductions with landlords or, where reductions cannot be agreed, applying to the court to repudiate leases. In order for an examinership to be successful, the company will generally require fresh investment from existing shareholders or from a third party and the examiner will advertise seeking expressions of interest from investors.

 

Exiting Examinership

The examiner’s proposed scheme of arrangement must be approved by a majority in number representing a majority in value of one class of creditors and no class of creditors can be unfairly prejudiced (i.e. they must not receive less than they would in the event that the company were liquidated). If external investment has been secured an investment agreement will need to be prepared and executed.

Once approved by at least one class of creditor, the scheme of arrangement is presented to the court. If the court is satisfied it will make an order approving the scheme of arrangement and the examinership will end.

 

Key Considerations

    • A petition will be refused if a resolution to wind up the company has been passed, an order has been made for the winding up of the Company or a receiver has been appointed over any of the Company’s undertaking and assets and has been in place for three days prior to the petition being made.
    • The costs of applying for examinership are substantial. While most SMEs will meet the criteria for examinership through the Circuit Court, the costs of the Independent Expert’s Report and bringing the petition will be in the region of €15,000 – €20,000. Larger companies must petition the High Court with much higher associated costs. As a result, it is important to initiate the process at an early stage while the company still has sufficient cash available to fund the application.
    • In order to maintain cash flow during the protection period, and to secure the approval of the scheme of arrangement, the support of key customers and suppliers is vital if an examinership is to succeed.
    • An external investor will have a limited period of time in which to carry out due diligence on the company so work should commence immediately on gathering the relevant information that an investor is likely to require.
    • An external investor is likely to seek a substantial equity stake in the Company in return for their investment which can lead to the existing shareholders’ stake being effectively wiped out. As a result, it may be preferable for existing shareholders to source funds themselves and advance them to the company.

 

In J.W. O’Donovan we have both the experience and expertise across our various departments including Corporate and Commercial, Litigation and Property to guide you through the Examinership process from start to finish.  Should you wish to discuss the process in more detail then please don’t hesitate to contact either John Sheehan or John Fuller of our Corporate Department, details for whom can be found on our website www.jwod.ie

Virtual Court hearings to commence this term

The Courts Service, like many other public amenities, has been adversely affected by the Covid-19 crisis and is experiencing unprecedented difficulties in the operation of its services and the administration of justice. With the exception of urgent criminal and family law cases, very few proceedings have been determined by the courts in recent weeks.

In an attempt to restore some level of progress to proceedings the Chief Justice, Mr. Frank Clarke recently announced the introduction of virtual court hearings. This system of remote hearings is already in operation for some criminal appearances and is used by the prison service and Gardaí. As and from the 20th of April this virtual courtroom facility was extended to civil cases also. Both the Supreme Court and the Court of Appeal heard matters in individual cases with judges, practitioners and the parties to the proceedings appearing via video from remote locations. The cases were displayed on video screens in largely empty courts for members of the media present. Not only will this new facility reduce the significant backlog of cases which exists from the closure of the Courts but it will also reduce pressure on parties to unwillingly settle disputes due to the undetermined waiting time to have the matter resolved by a judge.

Chief Justice Clarke stated that a “considerable amount of work has been done” on facilitating remote hearings “which nonetheless comply with the constitutional obligation that justice be administered in public”. Mock trials were conducted in the past few weeks to test the new system and it is expected that the Courts will soon issue guidance in relation to the operation of the new system in each court jurisdiction.

In a statement delivered in court via remote link, Chief Justice Clarke confirmed that “Remote hearings will be suitable for some types of proceedings in the High Court and a limited number of cases in the District and Circuit Courts. The Court Presidents and the Courts Service are exploring ways in which to increase the number of cases which can be dealt with in physical hearings. It must also be acknowledged that many urgent cases throughout the Country have been handled by dedicated judges and staff often working in difficult conditions. The District Court in particular has, because of its caseload of often urgent criminal and family hearings, had to bear a particular load.”

A similar approach will be required in respect of employment cases before the Workplace Relations Commission (“WRC”) and the Labour Court. The Law Society’s Employment & Equality Committee is of the view that a significant amount of cases before the WRC and the Labour Court could also be heard using the technology which the Courts Service are availing of. The Law Society issued a letter to both the Registrar of the Labour Court and the Director of the WRC proposing that remote hearings should be utilised for employment disputes where all parties consent to using applications such as Skype or Zoom until a more formal arrangement can be set up. Such a proposal would serve the interests of justice when compared to the alternative to postponing hearings indefinitely, leaving employees and employers facing uncertainty. The Mental Health Commission is also conducting Tribunals by video-conference and it should be possible for the WRC and the Labour Court to adjudicate on questions of employment rights remotely.

It is reassuring to see that the Courts Service are adapting to the current difficulties and that measures are being introduced to ensure that the administration of justice continues.  It is hoped that the WRC and the Labour Court will also avail of these new technologies to provide virtual hearings for use in employment related disputes.

J.W. O’Donovan is monitoring developments in this area in order to keep its clients aware of the evolving situation. Should you have any queries as to the effect of the above, please email Ciara Lehane, Associate Solicitor at clehane@jwod.ie.

New financial supports announced for struggling business owners and employees as a result of Covid-19

The Government has announced new measures this week to help businesses and employees who are struggling financially during the Covid-19 emergency. The new measures provide a comprehensive range of supports for businesses who are in a position to retain employees but also for employees who have been laid off as a result of the crisis. The measures introduced (as of the 26th of March 2020) include a Temporary Wage Subsidy Scheme for employers and a social welfare payment known as the ‘Covid-19 Pandemic Unemployment Payment’ for employees who have been laid off.

  1. Temporary Wage Subsidy Scheme:

The Temporary Wage Subsidy Scheme aims to ensure that employers maintain links with their employees which will make it easier for businesses to return to a normal working environment after the crisis. Employers are encouraged to avail of the scheme and retain employees on their books during the crisis.

The scheme will operate from Thursday 26th March 2020 and Revenue will refund employers up to €410 for qualifying employees from this date. Refunds to employers are expected within 2 working days after the payroll submission.

From April, the subsidy will be adjusted to provide a subsidy of 70% of an employee’s weekly wage up to a maximum of €410 for employees earning under €38,000. For employees earning between €38,000 and €76,000 the maximum subsidy will be €350. The scheme will not apply in respect of employees earning over €76,000.

To qualify for the scheme employers must experience significant negative economic disruption to their business due to Covid-19. In particular, employers must demonstrate to Revenue that their business has suffered a minimum of a 25% decline in turnover and that they are unable to pay normal wages and outgoings.

The scheme will automatically replace the Covid-19 Refund Scheme which many employers have already signed up to.

Employers can register for the scheme through ‘MyEnquiries’ on the ROS website.

  1. Covid-19 Pandemic Unemployment Payment:

The Covid-19 Pandemic Unemployment payment is a social welfare payment available to employees who have been laid off work as their employer was unable to retain them due to the Covid-19 crisis.

This new social welfare payment of €350 is available to all employees, self-employed, students and part-time workers aged between 18 and 66, who have lost their jobs or stopped trading as a result of the pandemic.

The original rate of payment was €203 however all recipients will automatically receive the increased rate of €350. The increased rate will also be backdated to the date of the employee’s application.

The easiest way for employees to apply is online at www.MyWelfare.ie or by sending an application form by post.

These two new support measures provide much needed assistance to struggling businesses and employees during these difficult times.

We at J.W. O’Donovan are monitoring the situation very closely and are available to answer any queries that any businesses owners or employees may have at this time.  We strongly advise that a constant review of the Revenue guidelines be undertaken as the applicable rules are frequently changing. If you would like more information on any of the above please contact mail@jwod.ie.

Date of Publication: 26th March 2020

Employment Law Update: Covid-19 Pandemic Unemployment Payment Scheme and Illness Benefit

As employers and employees face into changed circumstances as a result of Covid-19,  the government has introduced new social welfare measures to take effect immediately.

The situation remains fluid, with the guidelines being updated regularly. If you need specific advice around your obligations as an employer, you can get in touch at mail@jwod.ie.

The following is an overview of the current Covid-19 Pandemic Unemployment Payment Scheme and the Illness Benefit.

1 Covid-19 Pandemic Unemployment Payment Scheme

The Government has introduced the Covid-19 Pandemic Unemployment Payment Scheme, which is designed to cover the first six weeks of being out of work. Job-Seekers Allowance is not ordinarily payable for that period.

The €203 payment a week under this new scheme arises where the employed or self-employed become unemployed or have their hours reduced because of the impact of Covid-19. It is payable for six weeks during which time employees must seek the normal Job-Seekers Allowance. Currently, employers will not get Job-Seekers Allowance after the six week period. This will likely be reviewed by Government as matters progress over the coming period.

The scheme applies to those between 18 and 66 years of age and applies provided they have been in work. The claim is made by completion of a short form which should be submitted electronically and not be personal visit to the relevant Intreo office.

As part of the evolving Government response, employers are being requested to pay the €203 a week and seek reimbursement from the Government. On Wednesday the 18th March 2020, the Government announced the reimbursement scheme would be operated by Revenue on behalf of the Department of Employment Affairs and Social Protection. The up-to-date Revenue advisory to employers is payments made by employers under this scheme are not subject to tax, USC or PRSI. The amount paid by employers to employees and notified to Revenue will be reimbursed generally on a “next day” basis direct to the employers bank account.

Any refunds of income tax or USC that an employee may be entitled to receive due to being laid off will also be administered by the employer and again the employer will be reimbursed by Revenue through the scheme.

Revenue has issued guidance notes for employers and their ROS agents on its website.

2 ILLNESS BENEFIT 

The Government also introduced a recent change to entitlement to Illness Benefit increasing it to €305 a week for Covid-19- affected people only (normal non-Covid-19 Illness Benefit continues at €203 a week). To obtain Covid-19 Illness Benefit, the employee must satisfy the criteria of being medically certified to self-isolate or having received a medically confirmed diagnosis of Covid-19. If it is a medically approved self-isolation, the employee is paid enhanced Illness Benefit for two weeks and if a diagnosis of Covid-19 follows, then the payment continues for the duration of the illness.

An employee who unilaterally decides not to come to work, where work is available from the employer, does not qualify for the enhanced Illness Benefit of €305.

Article by David Pearson, Partner on J.W O’Donovan Solicitors’ Employment Law team.

Covid-19 JWOD Update

To all our clients and colleagues.

We are constantly monitoring the evolving situation with Covid 19 and are following all advice from the authorities in the best interests of our staff, clients and colleagues. Our office remains open and we are continuing to provide a full service to our clients, while taking all appropriate measures to play our part in containing the spread of the virus.

Our IT systems allow all our solicitors to work remotely so they will do so where feasible and will continue to be available to clients.

We have adopted a policy that face to face client meetings will only take place where absolutely necessary and with all appropriate safeguards.

We are committed to supporting all our clients during this difficult period so you should feel free to contact us as usual. We shall provide further updates as and when required.

What are employer duties around Covid-19?

The outbreak of the coronavirus Covid-19 raises challenging points of Health and Safety Law, Employment Law, Data Protection Law, Immigration and Employment Equality issues. The outbreak is prompting employers and HR Departments to assess the risks, review existing Contracts of Employment and Company Policies, devise a plan and clearly communicate with employees on a continuing basis in light of the evolving spread of Covid-19.

What should employers do? 

Employers should carry out a Risk Assessment of the workplace under Health and Safety legislation. Measures to protect against the spread of Covid-19 entering the workplace and to mitigate or minimise the effects of an outbreak at the workplace should also be adopted. Measures could be minimal such as ensuring sufficient hand sanitisers, hand wipes and increased cleaning of surfaces. Other options include permitting or requiring employees to work from home or remain out of work.

Relevant company policies should be reviewed, including policies such as an existing infectious disease outbreak response plan, sick pay policy, holiday policies, force majeure policies, carers policies and lay-off policies.

Communicate with your employees

Once the initial risk assessment has been carried out and all policies reviewed, strong HR communication with staff is critical to ensuring a full understanding by employees of what is expected of them, particularly if they become symptomatic or in contact with somebody who is symptomatic. Employees should also be informed that if a significant portion of the workforce become infected or are required to remain in “self-isolation” the policies may need to be adapted to changing circumstances.

Obligations around pay and sick leave

One of the main questions for an employer will be whether to pay or not pay an employee who is required to remain out of work but not diagnosed with Covid-19.  If those employees can continue to work from home then they should be paid their normal renumeration. If they’re not able to work from home, the employer needs to apply a consistent policy across the workforce and keep that policy under review.

Where an employee has not contracted Covid-19 but is required to remain out of work and unable to work because of public policy considerations or directions, any sick pay policy will not apply to that employee until such time as the employee has contracted Covid-19.

Additionally, an employer may need to relax normal rules around providing medical certification of sickness in circumstances where medical professionals may not be in a position to provide certification and/or employees may not be in a position to obtain medical certificates in a timely fashion.

In parallel with the application of any sick pay policy, the employer needs to ensure that it has a robust absence policy for employees who may seek to unfairly take advantage of a developing situation. Consideration will need to be given to employees who refuse to come to work,  including those based on reasonable grounds. Flexibility around unpaid leave, annual leave and/or carers leave might need to be considered by the employer.

In extreme cases, an employer may be required to temporarily shut a significant part or all of the workplace.  Employers may be able to temporarily “layoff” staff under existing contracts of employment and the employee handbook.  An infectious disease outbreak response plan would also need to take consideration of employees who have travelled abroad on behalf of the employer, in particular, employees returning from areas that are subject to an outbreak of Covid-19.

Applying an infectious disease outbreak response plan

In implementing any infectious disease outbreak response plan, an employer must have particular regard for individual employees who have contracted Covid-19 or who may be required to remain out of work. Information in relation to individual employees will be personal data under GDPR and will require to be treated with the greatest sensitivity by the employer.

Another challenge for employers applying an infectious disease outbreak response plan is to ensure that its application is not based on race, nationality or ethnicity.  The Employment Equality Acts prohibits discrimination against employees on a number of grounds, including race, with severe consequences for employers who are found to have discriminated against employees.

In summary, an employer’s infectious disease outbreak response plan should be reviewed frequently in light of any developing situation within the workplace and generally and taking into account of advice from appropriate authorities such as the government, HSE and World Health Organisation.

Article by David Pearson, Partner on J.W O’Donovan Solicitors’ Employment Law team. If you would like more information on this topic, contact David at dpearson@jwod.ie  or 021 7300200.