Complainant

Respondent

Anonymised Parties

A Primary School Teacher

A Primary School

Representatives

Irish National Teachers Organisation

Mason Hayes & Curran Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00028554-001

20/05/2019

The complaint was submitted to the Workplace Relations Commission on 20th May 2019 and relates to a period of Health and Safety Leave which was denied to the complainant on 14th November 2018. The respondent in the within complaint is the Board of Management of the Primary School that employs the complainant. A further complaint was also submitted on the same date and based on the same set of facts. (ADJ000-21753 refers). In that complaint the A Government Department was named as the respondent in relation to the complainant’s unsuccessful application for Health and Safety Leave. A separate decision will issue in relation to that complaint.

The complainant is a Primary School Teacher and works within the School’s Autism Spectrum Disorder (ASD) class. The complainant stated that in November 2018, she sought a period of Health and Safety Leave as she was pregnant and was at risk in her work location during that time. The complainant contends that the school carried out a Risk Assessment in relation to the complainant continuing to work in the ASD class while she was pregnant and accepted that due to the circumstances of the complainant’s pregnancy and the risk of abdominal trauma while working in the ASD class, the complainant should be placed on Health and Safety Leave as requested.

The complainant stated that the option to take Health and Safety Leave was agreed with the employer on the basis of the risk involved and based on the fact that there were no alternative classes that the complainant could temporarily move to as there were also children with some level of special needs in the mainstream classes and the risk to the complainant could not be removed.

The complainant stated that prior to receiving sanction in relation to the Health and Safety Leave, the respondent was required to seek certification from the Department’s Occupational Health Specialists (OHS). The complainant stated that in accordance with Circular Letter 54/2019, an application for Health and Safety Leave was submitted to the OHS on 8th November 2018 including the Risk Assessment carried out by the School and a letter from the complainant’s Consultant Obstetrician.

The complainant stated that the Principal of the School received a letter on 14th November 2018 stating that the application was unsuccessful, and a review of the decision was sought which also proved unsuccessful. The complainant stated that OHS clarified that the Health and Safety Leave had been refused on the basis that the complainant’s issues were medical rather than issues of Health and Safety and that she could have been moved temporarily to a mainstream class which would have minimised the risk to her. The complainant stated that her G.P. subsequently wrote to the OHS in relation to the application, and to the best of her knowledge received no further reply.

The complainant submits that the decision of the OHS to refuse the application for Health and Safety Leave was made without a full assessment of the complainant’s circumstances, including assessing her medical records, the advice of the G.P. and Consultant or properly assessing the risks that existed in the workplace. The complainant contends that the Department’s Employers Procedures Manual provides the following at Paragraph 1.5 of Chapter 1:

“Where there is a difference of medical opinion between the OHS and the treating Doctor/Consultant on a teacher’s medical fitness for work, the OHS will consult with the treating Doctor/Consultant before providing final advice to the employer. If there is a specific need for an independent medical assessment, this can be facilitated through the OHS.”

The complainant contends that the OHS decision was not based on a full examination of the facts in relation to the risks involved and no consideration was given, or assessment undertaken relating to the complainant’s specific circumstances in the workplace. The complainant further contends that the OHS failed to comply with the provisions of the Employer’s Manual in relation to consultation with the Doctor/Consultant where there are differences of medical opinion.

The complainant is seeking that the period of 8th November 2018 to February/March 2019 be reclassified as Health and Safety Leave and the payment of a level of compensation that is just and equitable in the circumstances.

The respondent accepted the need for the complainant to take Health and Safety Leave for the period in question following a risk assessment of the complainant’s working conditions and due the lack of suitable alternatives available within the School.

The respondent contends that it followed the required procedures and conducted a risk assessment and submitted the risk assessment and the correspondence from the complainant’s G.P. and Consultant Obstetrician to the OHS in support of the complainant’s application. Regrettably, the OHS refused the application on the basis that the complainant’s issues were of a medical nature as opposed to matters relating to Health and Safety and despite the respondent’s efforts to seek a review of the OHS decision the decision remained unchanged.

The respondent stated that while it supported the complainant’s position at all times, it was not in a position to grant the Health and Safety Leave as certification is required in accordance with Circular letter 54/2019 and the complainant’s terms and conditions of employment.

The Applicable Law

Section 18(1) of the Maternity Protection Act, 1994 provides as follows:

18.(1) If, by regulations under the 1989 Act implementing the 1992 Directive, an employer is required to move an employee to whom this Part applies to other work (whether as a result of a risk assessment or because the employee cannot be required to perform night work), but—

(a) it is not technically or objectively feasible for the employer to move the employee as required by the regulations, or

(b) such a move cannot reasonably be required on duly substantiated grounds, or

(c) the other work to which the employer proposes to move the employee is not suitable for her,

the employee shall be granted leave from her employment under this section.

I have considered the submissions of both parties to this complaint. I am satisfied that the respondent acted in line with the requirements of the legislation and sought the certification of the OHS in line with the provisions of the complainant’s terms and conditions of employment and Circular Letter 54/2019.

I note that the School Principal spoke to an Occupational Health Physician in the OHS on 12th November 2018 and was informed that it was unlikely that the Leave would be granted as the complainant’s issues were medical as opposed to issues of Health and Safety.

On the 14th November 2018 OHS notified the complainant that its decision was not in her favour and a review was sought and notification was received two days later to say that decision would not be changed. It was also contended that further correspondence from the complainant’s GP to the OHS went unanswered.

On this timeframe I note that prior to making its decision, OHS had signalled that the Health and Safety Leave would most likely be refused as there were medical issues relevant to the complainant’s pregnancy. While this is the case, there were also imminent Health and Safety risks in the workplace and all parties excluding OHS were in agreement that Health and Safety Leave was appropriate in the circumstances.

I also note that the initial decision and the review of the decision were dealt with extremely quickly and I accept the complainant’s position that there was no assessment of her health or the environment where she was expected to work. OHS said that she could be transferred to a mainstream class, yet this had been deemed unsuitable for the reasons previously stated.

It also appears that when a difference in medical opinion arose, the OHS did not act in compliance with the requirements of the Employer’s Procedures Manual in arranging an independent medical assessment.

Section 32 of the Maternity Protection Act, 1994 provides as follows:

32. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute between an employee and the relevant employer relating to any entitlement of the employee under Part II , III or IV (or any matter arising out of or related to such entitlement) may include such directions to the parties to the dispute as the adjudication officer considers necessary or expedient for the resolution of the dispute, and if the decision is in favour of the employee then, without prejudice to the power to give such directions, the adjudication officer may order —

(a) the grant of leave to the employee for such period as may be so specified,

(b) an award of compensation (in favour of the employee to be paid by the relevant employer) of such amount, not exceeding 20 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed, as the adjudication officer considers just and equitable having regard to all of the circumstances, or

(c) both such grant and such award.

In all of the circumstances of this complaint, I am satisfied based on the evidence presented, that it was appropriate for the complainant to be placed on Health and Safety Leave for the period in question. Accordingly, I find that the complaint is well founded. On the issue of compensation, I note that the respondent to the within complaint was very supportive of the complainant and made every effort to ensure that she would receive her entitlements to Health and Safety Leave. In those circumstances, and having awarded the Leave in question, I do not consider it appropriate to award compensation.

The complaint is well founded. The respondent is directed to reclassify the period of Sick Leave from 8th November 2018 to 28th February 2019 as Health and Safety Leave in line with the provisions of the legislation.

Health and Safety Leave