Worker

Employer

Anonymised Parties

A Staff Nurse

A Healthcare Service Provider

Representatives

Mary Fogarty INMO

Mairead Crosby IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001038

23/01/2023

The Worker referred her dispute to the Director General of the WRC on 23 January 2023. The dispute concerns the Employer’s failure to pay the Worker for the period of certified sick leave.

INMO, on behalf of the Worker submits as follows.

This dispute is referred under section 13 of the Industrial Relations Act 1969 seeking that the Employer repays monies deducted from the wages of the Worker, following a period of medically certified sick leave. The sum of €1,200 net was deducted from the wages of the Worker and is to be repaid and a compensation sum of €5,000 is sought for the breaches by the Employer of the Managing Attendance Policy, the provisions within the contract of employment, the public service sick leave regulations as set out in the Department of Health Circular 5/2014 and for invoking a de facto disciplinary sanction on the Worker without following due process.

The absence of any income following a period of medically certified sick leave placed the Worker in a vulnerable financial situation with a young family. It also impacted on her pensionable service in employment with a loss of 14 days in pension. This claim warrants the compensation sought.

Background to the claim

The Worker is a staff nurse employed by the Employer for over eight years. In this time, she has held an excellent employment record inclusive of sick leave.

On 11 October 2022 the Worker was unwell and in compliance with the Employer’s Managing Attendance Policy she contacted her Employer via the on-duty manager to report in sick on 11 and 12 October 2022. At this time, she advised of a prospective return to work on 15 October 2022. Unfortunately, she had to attend at an out of hours GP service on 13 October 2022 in the late evening due to deteriorating illness and was medically certified as unable to attend at work from 13 October to 21 October 2022 (inclusive).

The Worker returned to work on 25 October 2022 and on 26 October she was called into the office by her line manager who advised that following discussion with HR and the Service Manager that she would not be paid for the period of certified sick leave. The line manager advised she was not questioning if the Worker was sick but, because a previous request for annual leave for the same period as the sick leave could not be facilitated, it was very coincidental. The line manager also advised that there would a disciplinary action placed on file. The Worker became extremely upset, broke down crying and was unable to respond.

Later that evening when off duty, at 21:51 hours the Worker sent an email to her line manager expressing that the meeting and the content of the conversation earlier that day was weighing very heavily on her. She gave a full explanation for her period of illness, expressed concern for the impending financial loss of income and concern regarding future disciplinary action if she were ill again.

In email response on 27 October, the line manager advised that she was "not questioning whether you were sick but that the timing was very coincidental and I could not ignore it". The email goes on to state that "the sick pay scheme is a discretionary scheme so in this instance myself and HR are exercising our discretion not to pay sick pay in this pay period.”

No further communication or correspondence issued to the Worker regarding a deduction in her wages but at her next pay date she received no pay. A statement of wages was not presented. Subsequently, following a request to payroll an email from the Payroll Department confirmed non-payment of wages from 9 October to 22 October 2022.

The Worker lodged a formal grievance under stage 2 of the Employer’s policy on 4 November 2022, a meeting took place on 15 November 2022. Following this meeting management upheld the decision to not pay sick pay on the premise that the Worker went sick on the same days as she applied for leave.

The grievance was appealed to the Head of HR under stage 3 and the decision not to pay sick pay was upheld as "it is appropriate to use the discretion allowed for in the scheme and to refuse sick pay.”

The INMO subsequently wrote to management on 16 January 2023 setting out the intention to refer the grievance to the WRC should management persist in denying payment of sick pay for a period of medically certified sick leave. The INMO advised that the Managing Attendance Policy was not followed as it is a requirement within under section 8.9 that abuse of the scheme constitutes a disciplinary offence to be dealt with under the disciplinary procedure, and that the questioning of a medically certified period of sick leave should have resulted in a referral by management to Occupational Health as set out in section 8.4.

Management responded advising of their entitlement to exercise discretion for payment of sick pay.

The union’s position

The Worker is a public sector employee, her sick pay entitlements are governed by the Public Sector Sick Leave Regulations, national circulars, and the contract of employment.

Public Sector Sick Pay Regulations & Department of Health Circular 5/2014

The sick leave entitlements for the public sector are set out in S.I. No. 124 of 2014 and in relation to the health service under the  Department of Health Circular 5/2014.

Under section 7 of S.I. 124 of 2014 it states that-

7. (1) Subject to Regulation 24, it shall be a condition for the payment of remuneration during a period of sick leave on a relevant person’s part that a medical practitioner certifies in writing that the person is unable to attend to his or her duties due to illness or injury.

(2) Notwithstanding satisfaction of the foregoing condition, it shall be a condition for the payment of remuneration during a period of sick leave on a relevant person part (or, in the case of subparagraph (b), for the continued payment of such remuneration)— (a) that

(i) any initial representation or communication, by or on behalf of the person, to the administrator (concerning the persons being unable to attend to duties due to illness or injury) appears to the administrator to be bona fide.

Circular 5/2014 from the Department of Health in relation to S.I. No. 124 of 2014 states in paragraph 4 that "payment of sick leave remuneration is dependent on full compliance with the employer existing policies and procedures governing the granting of sick pay”.

Contract of employment

Under the clause referring to sickness absence it is stated-

"A certificate from a qualified medical practitioner must be submitted on the third day of a continuous absence and on a weekly basis thereafter. At all times the Services reserves the right to refer an employee to medical practitioner of its choosing for an independent medical assessment.

The terms of the Service’s sick pay scheme are in accordance with The Public Sector Sick Leave Scheme as outlined in the Managing Attendance Policy. Sick pay is at the discretion of the Director of Services. The Service reserves the right to refer employees to its own Company Doctor. "

The Worker was certified as unfit to attend at work by a medical practitioner for the period of 13 October to 21 October 2022 inclusive. She complied in full with the requirements of the Employer under the sick leave policy and submitted a medical certificate as required on the third day.

Regulation 7 of the Statutory Instrument 124 of 2014 as set out above states that it is a condition for sick pay that a medical practitioner certifies in writing that the person is unable to attend work due to illness and that this initial representation on behalf of or by the person to the employer appears to be bona fide. This means that the sick leave certification by medical doctor on behalf of a person is made in good faith, is genuine and complies with relevant circulars.

In the email from the line manager to the Worker on the day after advising that sick pay will not be paid, it is stated, "I was not questioning whether you were sick but the timing was very coincidental. " The Employer therefore had no issue with the bona fides of the Worker or that of the medical certificate from a qualified medical doctor.

If the Employer had any concerns, it was entirely open under the contract of employment to have an independent medical assessment undertaken. The contract of employment states in respect of sickness absence that "at all times the Services reserves the right to refer an employee to a medical practitioner of its choosing for an independent medical assessment”, and, "the right to refer employees to its own Company Doctor." The Employer did not utilise either option.

The Employer does not have any expertise or qualification to second guess medical certification of illness by a registered medical doctor. Yet in this case despite stating that they were not questioning whether the Worker was ill, the Employer unilaterally decided to deny sick pay despite full compliance with policy and procedure by the Worker. This was a disciplinary sanction imposed without due process.

Notwithstanding the above, the Employer breached the contact of employment as it states that sick pay is at the discretion of the Director of Services. In this case the line manager and HR exercised  discretion and took no cognisance of how, and by whom, such discretion should be exercised in the public sector.

Managing Attendance Policy

The contract of employment of the Worker states that the sick pay scheme is applied in accordance with the Public Sector Sick Pay Scheme as outlined in the Managing Attendance Policy.

The Managing Attendance Policy sets out the employment sick leave procedure in section 8 which was complied with in full by the Worker.

Section 8.4 allows for the Employer to require a medical assessment during a period of absence through illness and section 8.9 states that "abuse of the sick pay scheme constitutes a disciplinary offence and will be dealt with under the disciplinary procedure."

The provisions of the Managing Attendance Policy protect both the Employer and Employee when utilised. It gives employees an opportunity to address any shortcomings in their attendance by putting them on notice of concerns from the Employer. It enables a balanced, fair, and transparent approach to the exercising of discretion in respect of sick pay prospectively, not retrospectively as occurred in this case. It is not the norm in the public health service that the employer utilises unfettered discretion without first adhering to the agreed policy and procedures to ensure that employees receive their entitlements as set out under Statutory Instrument, national circulars and agreed policies and procedures.

At no stage did the Employer utilise the provisions of the Managing Attendance Policy or the contract of employment to independently assess the health status of the Worker over the 2 week period, or the bona fides of the written representations made by a doctor on her behalf. Yet the Employer assumed abuse of the sick pay scheme and deducted a significant sum of money from her wages.

To take money from the wages of an employee is a severe sanction but to do it without following any agreed policy or disciplinary procedure is unfair, unreasonable and a breach of the Managing Attendance Policy and agreed disciplinary procedures in the health service.

The Employer cites coincidence as the rationale for the denial of sick pay which is an illogical position as they did not seek to assess at any time the health status of the Worker despite ample provisions for same. Coincidence is not a sound basis to deny sick pay, the Employer must first establish the facts from an independent medical professional or an occupational health provider and utilise all available options before the imposition of such a draconian sanction.

Conclusion

An employer does not have an unfettered power of discretion to deny sick pay to a public sector employee. Policy and procedure provide steps for the Employer to ensure that the provisions of the sick pay scheme are fairly applied. Refusal to pay an employee during a period of medically certified illness must be exercised with caution and in compliance with nationally agreed policy and procedures.

Because of the actions by the Employer the Worker lost significant sick pay, lost pensionable service, and had a de facto disciplinary sanction imposed, all undertaken without due process. This led to financial hardship and distress. The actions undertaken against the Worker require corrective action by repayment of monies deducted and compensation to deter the Employer from deviating from policy and procedures in the future.

IBEC, on behalf of the Employer submits as follow.

The Worker alleges that her “Employer alleging abuse of sick pay scheme and withdrew access to the sick pay in contravention of the employer managing attendance policy and contravention of the disciplinary procedure.  Approximately €1,200 deducted from wages as a result causing severe financial hardship to a working mother with young family”.           

The Employer rejects the claim in its entirety. 

BACKGROUND TO THE EMPLOYER

The Employer is a Section 38 healthcare service provider. It delivers a range of services to about 350 adults with an intellectual disability and their families. It has a Service Level Agreement with the HSE which also funds the organisation. It employs about 460 staff in a range of disciplines including nursing, social care, and care assistants.  

BACKGROUND TO THE WORKER

The Worker commenced employment with the Employer on 22 November 2015 as a Staff Nurse. The Worker works 66 hours per fortnight and earns a salary of €1,691 gross per fortnight.  This salary figure includes a location allowance which is paid out each fortnight.

BACKGROUND TO THE DISPUTE

In line with the Employer’s policy on annual leave, the Worker applied four weeks in advance for a period of annual leave for the period from 13 to the 21 October 2022 through the payroll system as required.  This request was raised to the Clinical Nurse Manager, Grade II as at this point in time, the Worker had not only used her annual leave for the year of 22 days but was in a negative balance of 13.89 days.  The Clinical Nurse Manager advised her that her leave was declined as she had no annual leave entitlement remaining. The Worker had been seeking the leave for family reasons and advised the Clinical Nurse Manager that she would make alternative arrangements. 

On 13 October 2022, the Worker made contact with the Employer and advised that she would be on certified sick leave for the period from 13 to 21 October 2022 and a medical certificate, dated 13 October 2022 was provided to the Employer. 

On 26 October 2022, the Worker sent an email to the Clinical Nurse Manager Grade II / Person in Charge regarding a conversation that they had had that morning.  It was in regard to the fact that the Worker had sought annual leave from 13 to 21 October 2022 which had been declined and subsequently the Worker had gone on certified sick leave for that time. During the conversation, the Worker was advised that she would not receive company sick pay as the payment is at the discretion of the Employer.  

The Clinical Nurse Manager responded to the Worker the following day and confirmed that the discussion which had taken place was not a disciplinary matter.  However, the Clinical Nurse Manager did affirm that the Employer’s view was that the timing was very coincidental and could not be ignored.  The Clinical Nurse Manager stated that the Employer appreciated the fact of the financial strain and would be willing to pay half wages for this period and half wages for the next pay period to assist the Worker.  Additionally, the Employer offered the support of their EAP programme.  

The Worker attended a grievance hearing on 15 November 2022, which was conducted by the Head of Integrated Services. The Worker was represented by an INMO Official.  

On 18 November 2022, the Head of Integrated Services wrote to the Worker and advised that, having considered the matter and the points that were raised at the meeting, the fact remained, that the Worker had gone on sick leave on the same days that she had applied for leave but had not been granted them. The company sick pay scheme was a benefit to staff but also a cost to the Employer’s business and there was a duty to protect the integrity of the sick pay scheme.   

On Monday, 21 November 2022, the Employer received correspondence from the INMO in respect of the formal grievance that had been invoked by the Worker on the 15 November 2022 under the Employer’s Dignity at Work policy querying to whom the grievance should be referred.  

The Head of Integrated Services responded the following day advising that as Stage 2 of the Grievance process had been heard by her that it now progressed to Stage 3 and that it was not under the Dignity at Work policy ,it was under the Employers Grievance and Disciplinary Procedure that the grievance had been lodged.  The Worker should send her written grievance to the Head of HR, as per the policy.

The Worker appealed the decision, and a meeting was arranged for 15 December 2022 with the Head of HR. The Worker attended the meeting and in attendance was her union representative of the INMO. The grounds for the Worker’s appeal were:

·       She had a good attendance record.

·       She was a good employee of the Service.

·       It was a ‘coincidence’ that her absence was on the same days as she had requested leave and had been refused because she did not have leave to take.

The Head of HR delivered his outcome to the Worker on 19 December 2022. Having given careful consideration to all of the information and taking on board the grounds for the appeal, the findings were that the fact that the Worker had been refused leave for particular dates and then subsequently was on certified sick leave at that time was not a ‘coincidence’.  The sick pay scheme has an integrity which must be upheld and therefore on the basis of questionable circumstances, the Employer believed that the non-application of sick pay to the Worker was fair, balanced, and appropriate in the circumstances.  

EMPLOYER’S ARGUMENTS

The Employer’s sick pay policy is very clear and sets out that the granting of sick pay is discretionary. The Worker had requested annual leave from 13 to the 21 October 2022 which was declined. The basis for the refusal was advised to her as she had no further annual leave entitlements and was in a negative balance.  Therefore, the Worker calling in sick even whilst medically certified was a coincidence that could not be overlooked by the Employer.

The Worker, in line with the Employer’s annual leave policy, applied for the leave four weeks in advance of the date.  She was aware that she had been declined the annual leave and had she advised the Clinical Nurse Manager that she would make alternative arrangements for the minding of her children as a family member was going to be away.  Therefore, in the event that such alternative arrangements were not possible, she could have approached the Clinical Nurse Manager and had a discussion.  The Employer is a reasonable employer and would appreciate when an employee may reach out to them, however, this was not the case.

The Worker was afforded the opportunity by the Employer to lodge a grievance in regard to its decision and this process was fully exhausted.  The Worker was afforded the opportunity to have her side heard, she was represented by the INMO, and she fully exhausted the internal procedures. The Employer had offered the Worker an opportunity to have her salary split over two pay periods in order to assist her financially. No response was received from the Worker to this offer.

The Employer’s sick pay scheme is very clear that discretion is available to the Employer in the application of the scheme.  In the event that the Adjudicator was to find the Employer’s actions were inequitable, this would raise significant challenges as it would mean that even if an employee is refused annual leave for whatever reason, that they are entitled to go on certified sick leave and to be paid as per the scheme, thereby creating an untenable situation.  

CONCLUSION  

The Employer would strongly assert that the Employer has the right to manage its sick pay scheme in a fair and transparent manner and did so on this occasion.

At the adjudication hearing, the Employer confirmed that no disciplinary action was taken against the Worker. It was further confirmed that it is very seldom, if ever that the Employer utilises its discretion in relation to the sick pay.

IBEC submitted that the fact that the Worker had withdrawn her claim under the Payment of Wages Act indicated her acceptance that she was not entitled to the payment.

It was clearly stated to the Worker that it would be a double punitive measure if the Employer commenced a disciplinary action against the Worker.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

There was no dispute that the Worker applied for annual leave for the period from 13 to 21 October 2022 which was declined. The Worker was not rostered to work on the 11 and 12 October 2022. However, she appears to have contacted her Employer on 11 and 12 October 2022 to report that she was unwell and advised of a prospective return on 15 October 2022. She subsequently attended her doctor and was certified as unable to attend work from 13 to 21 October 2022 inclusive.

I note that the Public Service Management (Sick Leave) Regulations 1024 relied upon stipulate that “the payment of sick leave remuneration is dependent on full compliance with the employer’s existing policies and procedures governing the granting of sick pay”.

There was nothing put forward to suggest that the Worker did not comply with the Employer’s National Policy and Procedure Managing Attendance. As per the Sick Leave Procedure, she notified her line manager and gave an expected return to work date. She subsequently furnished a medical certificate. The certificate was issued by a medical practitioner and confirmed that she was unable to attend work due to a medical condition.

The Worker’s line manager did not question the Worker’s bona fides. She stated clearly in her email that she did not question whether the Worker was sick but she could not ignore that the timing of the Worker’s illness “was very coincidental”.

I note that the email from the Head of Integrated Services of 18 November 2022 in response to the Worker’s initial grievance did not give any detail as to the reason for the refusal of sick pay. It simply states that “the fact remains that you went sick on the same days on which you had applied for leave” and “we have a duty to protect the integrity of the sick pay scheme”.

The subsequent letters of 19 December 2022 and 20 January 2023 issued by the Head of HR and a HR Officer on behalf of the Head of HR made a number of statements such as: “I don’t accept this was a ‘coincidence’”, “given the highly irregular nature of [the Worker’s] absence”, “[the Head of HR] is aware that it can be relatively easy to obtain a medical cert particularly from a ‘walk in clinic’”. These are serious allegations not only against the Worker but also against the medical practitioner who examined her and issued the certificate.

If the alleged coincidental nature of the Worker’s sick leave could not be ignored as asserted by the Employer, then an appropriate action should have been taken. It was open to the Employer to require the Worker during or following her absence to undergo a medical assessment by the Occupational Health Services or a medical practitioner nominated by the Employer as per clause 8.4 of the policy and the Worker’s contract of employment. It was also open to the Employer to instigate a disciplinary procedure as per clause 8.9 of the policy if it believed that the Worker was abusing the sick pay scheme. The Employer chose not to take any of the actions available to it but rather relied on its assumptions unsupported by any investigation or evidence.

Furthermore, I note that the Worker’s contract of employment states that sick pay is at the discretion of the Director of Services. However, it appears that at no stage was the Director of Services consulted on the matter or indeed involved in the decision making in that regard.

Having carefully considered the written and oral submissions made by the parties in relation to this dispute, I recommend that the Employer reimburses the Worker the amount of €1,200 net in respect of the sick pay for the period in question.

I further recommend that the Employer pays the Worker compensation of €3,000 for the manner in which it dealt with the matter.

I have carefully considered the submissions made by the parties to this dispute and I find in favour of the Worker in relation to this dispute. I recommend that the Employer reimburses the Worker the amount of €1,200 net in respect of the sick pay for the period in question.

I further recommend that the Employer pays the Worker compensation of €3,000 for the manner in which it dealt with the matter.

Sick pay – failure to follow procedures by Employer