Up Again Ireland: Premises and Workplace

Employment

1. What are the key things that employers have to consider in relation to social distancing in the workplace, e.g. open plan or spacing of desks, use of shared equipment, limited access to communal facilities, canteen / restaurant, etc.?

The key elements that an employer must consider are set out in the Irish Return to Work Safely Protocol.

Physical distancing of two metres should be maintained. Employers must organise employees into teams who work and take breaks together. A no-handshaking policy must be implemented. Canteen use and serving times must be staggered. Working and break areas should be reorganised and rearranged. Meetings should be conducted remotely where possible. Where office work is essential, free office capacity must be used as much as is reasonably practicable and work organised in such a way that multiple occupancy of office premises is avoided and/or physical distances maintained.

Employers may also allocate specific times for collections, appointments and deliverables, and provide one-way systems for access/egress routes in the workplace where practicable. Where appropriate, businesses might adapt existing sign-in/sign-out measures and systems, for example, biometrics/turnstiles, to ensure that physical distancing can be maintained. Employers should prevent gatherings of workers in the workplace at the start and end of working hours

Where it is not possible to maintain two-metre separation between employees, physical barriers should be installed, and should maintain at least a distance of one metre or as much distance as reasonably practicable. Minimise any direct worker contact and provide handwashing facilities, and other hand-hygiene aids, such as hand sanitisers and wipes, that are readily accessible so workers can perform hand-hygiene as soon as the work task is complete. Make face masks available to workers in line with public health advice.

2. What key hygiene and/or infection prevention measures will employers have to take to ensure a safe workplace e.g. provision of adequate handwashing facilities, regular deep cleaning of offices, etc.?

The key elements that an employer must consider are set out in the Irish Return to Work Safely Protocol.

Employers must:

  • ensure that appropriate hygiene facilities are in place to accommodate workers adhering to hand-hygiene measures;
  • make available advice and training on how to perform hand-hygiene effectively;
  • display posters on how to wash hands in appropriate locations;
  • provide tissues and bins/bags for their disposal;
  • empty bins at regular intervals; and
  • provide advice on good respiratory practice.

Work areas must be cleaned at regular intervals. Employers must:

  • implement thorough and regular cleaning of frequently touched surfaces; if an area needs disinfection, it must be performed in addition to cleaning, never as a substitute for cleaning;
  • ensure contact/touch surfaces such as tabletops, work equipment, door handles and handrails are visibly clean at all times and are cleaned at least twice daily;
  • implement modified cleaning intervals for rooms and work areas; this applies especially for washroom facilities and communal spaces;
  • cleaning should be performed at least twice per day and whenever facilities are visibly dirty;
  • provide workers with essential cleaning materials to keep their own workspace clean (for example wipes/disinfection products, paper towels and waste bins/bags);
  • increase number of waste collection points and ensure these are emptied regularly throughout and at the end of each day; and
  • modify use of hot-desks to ensure these are made available to identified staff and have appropriate cleaning materials in place for workers to clean the area before using.

Real Estate

3. Are there any specific obligations, liabilities or duties of conduct imposed on landlords, tenants or visitors with respect to the use or re-use and decontamination of premises; care, cleaning and maintenance of the exclusive and common areas; reporting requirements and/or measures in case of identified infections; health and safety issues - e.g. recommissioning water systems to avoid virus, installation of plexiglass screens, moving desks to comply with distancing. remodulation of fire prevention strategies (entrance/exit routes)? Is any distinction made between asset classes?

Owners and occupiers have various legal duties and obligations in respect of the safety of commercial premises and the health, safety and welfare of those visiting or working at such premises.

Under the Safety, Health and Welfare at Work Act, 2005, employees and visitors must not be exposed to risks to their health, which would include exposure to COVID-19. These rules also require that owners and occupiers take reasonable steps to ensure, insofar as practicable, that premises can be accessed in a safe way. Various other health and safety regulations may also apply, depending on the nature of the premises, the work being carried out at the premises or the health status of the employee or visitor.

Landlords of multi-let buildings that control common areas or retained parts, should be mindful that they may be the person primarily responsible for managing such risks. Owners of shared offices, or those that licence (as opposed to lease) commercial premises should be similarly mindful.

In light of companies returning to work, the government has published The Return to Work Safely Protocol, which is designed to support employers and workers to put measures in place that will prevent the spread of COVID-19 in the workplace when the economy begins to slowly open up. It sets out in very clear terms for employers and workers the steps they must take before a workplace reopens, and while it continues to operate.

It is advisable for owners and occupiers to carry out appropriate risk assessments (or to engage appropriately qualified professionals to do so) and to follow the advice of the Health Service Executive, the Health and Safety Authority, and other relevant entity.

4. Are there any rent suspension measures and/or stay of recourses and actions (including eviction) or any government support initiatives such as a furloughed building grant scheme (if so, maybe only a part of the building should be re-occupied)? When rent suspension measures are available, what is the usual payment mechanism and timing agreed to by the parties?

Currently, the only landlord and tenant legislation passed in Ireland in response to the crisis relates to residential tenancies. The Emergency Measures in the Public Interest (COVID-19) Act, 2020 prohibits residential rent increases and prevents landlords from terminating residential tenancies for the duration of what is defined as an emergency period (which may be extended), currently until 20 July 2020. This includes leases or licenses of student accommodation. Residential tenants are still required to pay rents and comply with other tenancy obligations (unless agreed otherwise).

No legislation has yet been passed to deal with the effect of the crisis on commercial tenancies, so the existing law remains as it was pre-crisis and all the usual remedies remain available to landlords (such as forfeiture, for example). However, landlords are likely to face some practical challenges if seeking to avail of such remedies. This is particularly the case regarding forfeiture, as a landlord may not be in a position to physically re-enter and take back possession, and access to court for non-emergency matters is limited.

5. Are there specific tax reliefs on payment or collection of rent instalments? Do they apply subject to actual payment or regardless? Do they apply generally or only to specific asset classes?

No. There are currently no such reliefs.

6. Are there any measures regarding relief from the performance of real estate-related contractual obligations?

No. There are currently no such measures. Generally, a party to a contract in Ireland will not be relieved of its contractual obligations because of a change in economic or market conditions, even where that change makes the performance of those obligations materially more difficult or expensive.

7. Are there any credit facilities in place to mitigate loss of income for landlords?

No. There are currently no such measures in place to mitigate the loss of income for landlords.

The Irish government and the Central Bank (as the financial regulator) have been working together with the Banking and Payments Federation of Ireland (BPFI) (which represents a large number of lenders) on a voluntary basis to ensure the availability of some debt-funding measures to support Irish businesses disrupted by the pandemic, including temporary payment breaks, adjournment of court proceedings, and the provision of working capital facilities. Some landlords may be able to take advantage of these measures to help them navigate the crisis.

8. Is there any relief from loan repayments / enforcement of loans secured against properties?

No. There are currently no such reliefs.

Generally, borrowers remain obliged to comply with their loan obligations, and the usual enforcement options are available to lenders. However, it appears to be the case in the market that lenders are acting reasonably towards commercial real estate borrowers that have found themselves in difficulty. That position may or may not change, depending on the duration of the crisis and its financial and economic impact on borrowers and lenders.

9. Are public services necessary to complete the sale, acquisition or other operation of real estate assets or companies or to establish the right to open for business (planning authorities, notary public, Land Registry, Companies’ Registry, etc.)?

Some public services that are necessary to facilitate commercial property transactions are operating on a limited basis:

  • Property Registration Authority: The PRA administers the Land Registry and the Registry of Deeds. The PRA is functioning at very reduced capacity. While some of the PRA’s online services remain available, its public-facing functions and its registration activities are in effect suspended. The PRA has recently started accepting applications for registration by post, but they are not being processed. This is giving rise to some concerns about the priority of applications among conveyancers. The ability of conveyancers to carry out searches of public registers (as required by the conveyancing process) is limited. Most planning searches (which are made at local authority offices around the country) cannot be carried out. Searches of title and deeds registers and courts offices (in respect of pending litigation) are still possible, but limited.
  • Company Registration Office: The CRO is accepting applications for the registration of new charges, but other services are curtailed.

Notaries generally do not play a role in Irish property transactions.

10. Are there any specific processes or protocols available to consummate real estate operations enabling them to comply with any required social distancing (e.g. electronic signature, etc.)?

Electronic signatures have been legally recognised in Ireland since the introduction of the Electronic Commerce Act, 2000. However, despite this (and subsequent legislation) there still exists a lack of confidence surrounding the use of e-signatures when executing certain types of transaction documents, including deeds. Deeds executed in this way are generally not accepted in property transactions because they are not accepted for registration purposes (with limited exceptions). As a result, Irish practice relies on most transaction documents to be signed by hand and original wet-ink documents to be furnished on completion. Although this poses challenges to the completion of transactions, in light of the current social distancing guidelines, documents are being executed in counterparts where possible, and conveyancers are being more flexible than usual.

11. Are contractors who were carrying out works within the premises obliged to resume them? Can building sites reopen when they were closed down? Are there any specific provisions in relation to certain asset classes authorising continuation / resumption of works (e.g. healthcare structures)?

From 18 May 2020, construction work recommenced in accordance with Ireland’s Roadmap for the return to normal commercial activity and The Return to Work Safely Protocol.

Whether contractors who were carrying out works will be obliged to restart works will depend on the terms of their contracts and the laws that apply in respect of such works at the time. This will need to be judged on a case-by-case basis.

12. Are there remedies or contractual arrangements available to address impossibility or delay for a party to handover premises to another which are/were to be constructed or refurbished, or for such other party to take over those premises?

Whether remedies or contractual arrangements exist is a matter of contract and should be considered on a case-by-case basis.

It is common in many of the forms of construction contracts that are used in the Irish market for force majeure (or equivalent matters) to be grounds for suspension of activities or the postponement of contractual deadlines. For example, if a construction site has had to close as a result of the pandemic, that closure may qualify as a force majeure event. If it does, the contractor may then be entitled to an extension of time for certain deadlines for the period of closure or even to terminate the contract.

However, contracts often define force majeure relatively narrowly, linking it to matters such as strikes or the non-availability of materials. Careful consideration would need to be given as to whether a pandemic qualifies as a force majeure event. The burden to prove that a force majeure event has occurred is likely to fall on the claimant, which may be difficult, and if one party incorrectly claims, it may expose itself for a claim to damages or to its counterparty seeking to terminate.

Where a force majeure event has occurred, the party relying on it will usually be entitled to suspend works until the force majeure event ends. However, a contractor cannot rely on it as a delay event without making efforts to mitigate losses. Further, if a delay is claimed as a result of the pandemic, the parties must adhere to the normal notice provisions contained in the contract.

13. Has the duration of validity of administrative authorisations pertaining to development/construction of real estate assets (in particular planning authorisations) been extended?

No. The Emergency Measures in the Public Interest (COVID-19) Act 2020 had amended the Planning and Development Act, 2000 to enable the Minister for Housing, Planning and Local government to suspend certain administrative deadlines that would otherwise apply, but this amendment ceased to apply from 23 May 2020.Litigation and Regulation.

14. Is the use of disclaimers for visitors or others coming on to the site of business useful for limiting potential future COVID-19 claims?

Potentially. A disclaimer does not guarantee protection against future COVID-19 claims in Ireland. That said, it may help to limit the scope of a business owner’s duty to visitors or others coming on site and could be represented as part of the reasonable measures adopted by the business owner to protect against the risk of spreading COVID-19.

Under the Occupier’s Liability Act, 1995, the occupier of a premises owes a common duty of care towards a visitor to ensure that a visitor does not suffer injury or damage by reason of any danger existing on the premises. It is permissible for the occupier to limit their duty through the use of warnings/disclaimers. However, a warning will generally only absolve an occupier’s liability where it is enough to enable a visitor to avoid injury after reviewing the warning. As a result, the effectiveness of a disclaimer in the context of COVID-19 is uncertain (particularly if the business owner is found to have failed to take sufficient practical measures to avoid spreading the disease).

The Health Act 1947 (as amended) creates an offence for failing to take precaution against the infection of others with a particular disease. A presumption of liability arises where precaution has not been taken and another person has, without knowledge, been exposed to infection.

Potential liability may be mitigated by using appropriate disclaimers. These may facilitate a business owner to claim that any exposure to COVID-19 which occurred was not caused without knowledge (as required under the Health Act 1947).