LCR20667

In relevant part that Recommendation provided as follows: -

• The Court recommends that critical illness cover be provided for six months at full pay and six months at half pay. The total maximum period of payment, including rehabilitation pay, should remain two years.

  On the question of the permitted incidence of this cover, the Court does not believe that it would be either fair or reasonable to limit the availability of this facility in the manner proposed by management. The Court does, however, recognise that recourse to critical illness cover should be regarded as an exceptional and normally non-recurring occurrence. It should also be accepted that provision of this facility, to those whose circumstances require it, is within the discretion of management. The Court does not believe that management should seek an unfettered discretion in providing this facility. Rather the parties should have further discussion with a view to reaching agreement on a protocol setting out the criteria against which this discretion will be exercised,. This protocol should also provide for independent appeals mechanisms in cases where the facility is withheld. The Court recommends that such discussions should commence as soon as practicable on acceptance of this Recommendation. If agreement is not reached this matter may be referred back to the Court for a definitive recommendation.

• 
  •Pregnancy related illness, including assisted pregnancy related illness

  •Disability related illness

  •Mental illness

• 1.Pregnancy related illness, including assisted pregnancy related illness
  The submissions from both the employer and union representatives addressed in some detail the important issue of the application of the proposed Critical Illness Protocol (CIP) in the case of pregnancy-related illness (including assisted pregnancy related illness) In assessing this issue there are a number of important considerations that should be taken into account:-
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    •Access to the CIP is recognised as exceptional and normally non-recurring applying in general to serious illnesses of a specified severity consistent with the criteria included in the Protocol in respect of which the employer and union representatives are in broad agreement

    •The employer submission points out that opening the Critical Illness Protocol to all pregnancy related illness, without qualification would not be consistent with the fundamental objective of new sick leave arrangements insofar as it would permit automatic access to the CIP for all pregnancy-related illness when fortunately most pregnancy related illness is not critical

    •The Public Services Committee’s (PSC) submission highlights the special factors that apply in the case of pregnancy-related illness, including the particular care requirements that are fully appropriate to safeguard the women’s health and well-being as well as the importance of assuaging any concerns regarding the availability of extended sick leave if it is required owing to pregnancy-related illness.

  
  While the Court notes the employer’s position that the management discretion provided under the Protocol could be applied to address the issue of pregnancy related illness that do not strictly meet the medical criteria set out in the CIP, the Court believes that the circumstances in which pregnancy related illness should be covered by the CIP should be specifically set out.

  Notwithstanding this the Court recognises that access to CIP should not be automatic for a pregnancy related illness.

  On that basis the Court recommends a balance which takes account of the employers perspective and that of the public service unions and recommends that in the circumstances that a pregnancy related illness gives rise to the requirement for two or more consecutive days of in-patient hospital /clinic care, the employee will be entitled if required where the illness is on-going to avail of extended sick leave under the Critical Illness Protocol.

  2. Disability related illness

  The issue of the extent to which disability-related illnesses would fall under the Critical Illness Protocol and on that basis potentially benefit from extended paid sick leave was discussed in the Submissions received from both parties. A key principle governing the operation of the Protocol as set out in Labour Court Recommendation No. 20335 was that access to the extended paid sick leave arrangements under the CIP should be exceptional. In practical terms this implies that the majority of absences relating to illnesses, medical conditions and injuries should be accommodated under the standard sick leave system. The central question to be determined, therefore, is the prevalence of what could be defined as disability-related illness which could potentially be subject to the CIP if all disability-related illnesses were automatically encompassed under the Protocol.

  In this context the management submission includes the assessment of the Chief Medical Officer in the Civil Service who advised that the legal definition of disability is such that a very large proportion of medical conditions could be represented as related to disability. In particular the analysis submitted with the management submission illustrates how the application of the legal definition of disability applies in practice leading to a situation that many conditions, which would not ordinarily be considered critical conditions, are likely to be classed as a disability.

  Consequently, the Court recommends on the basis that the Protocol as drafted already applies to disability-related illnesses that are critical and of a specified severity that no further amendment should be made to the CIP that would lead to its automatic application to all disability-related illnesses. However, the Court believes that there should be an explicit recognition of what is already implicit in the section of the Protocol dealing with the scope for management discretion that serious disability-related illnesses that would not strictly meet the medical criteria should be eligible for consideration of the granting of extended paid sick leave in particular in circumstances that an accommodation cannot be made to facilitate their return to work.

  Management shall also, in the case of an employee with a disability related illness, take steps to facilitate a reasonable accommodation that takes account of the particular needs of the individual in considering if such illness might be regarded as 'critical' for the purposes of this protocol.

  The Court also believes that it is important that employees with a disability-related illness are not precluded from the option of returning to work where that was possible on the basis of their employer taking all reasonable steps to accommodate the return to work of an employee with a disability related illness consistent with service requirements. The Court, therefore, recommends that the section of the Protocol setting out management discretion to provide access to extended sick leave is modified to reflect the requirement for the employer to take all reasonable steps in making an accommodation for a person with a disability-related illness to return to work consistent with specialist occupational health advice and service requirements.

  3. Mental Illness

  The final issue for consideration by the Court relates to the extent that the Critical Illness Protocol should apply to mental illnesses. Mental illnesses can range in severity from, for example, severe depression, bi-polar disorder and schizophrenia to what might be diagnosed as stress-related mild depression or anxiety. As set out in the management submission, all serious critical mental illnesses automatically fall within the Protocol. Public service management also make the case that in circumstances where all mental conditions fell within the Protocol, the fundamental objective of the reform of sick leave which is to reduce the cost and incidence of sick leave would be undermined.

  The union submission argues for the inclusion of all mental illness, regardless of severity, to be covered by the CIP.

  The Court notes the position reported in the management submission that the expert medical and occupational health evidence and advice is that outside of the illnesses covered by the CIP -- which usually require hospitalisation – in the majority of the cases of mental illnesses the conditions are not of their nature critical and with proper medical treatment and other support should not give rise to extended absence from work. Indeed in many cases returning to work and avoiding a prolonged absence from work has a measurable therapeutic benefit.

  On the basis that:-

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    (i) all employees with critical mental illnesses will have automatic access to extended sick leave under the CIP,(ii) that there is a management discretion available for cases that may not meet the specific criteria for inclusion under the CIP and
    (iii) that more general access to the CIP would impact adversely on the main objective of the reform of sick leave for the public service
  the Court does not recommend any further change to the Protocol in the case of mental illness.

  Conclusion

Signed on behalf of the Labour Court



Kevin Duffy
20th December, 2013______________________
JFChairman



NOTE

Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.