Worker

Employer

Anonymised Parties

   A Worker

A Public Body  

Act

Dispute Reference No.

Date of Receipt

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

CA -00049103

09/03/2022

The Worker commenced employment with the Employer in 2002 as a health care assistant and began a new role as a staff nurse in 2012. The Worker is working in a named theatre in a particular hospital, since 2012.

In March 2020 the Worker was required to take sick leave due to a health condition. The Worker’s GP wrote to the Employer and recommended that due to her prior medical history the Worker should not be returned to work in a frontline role due to possible exposure to Covid 19. The Worker was absent from work on sick leave from April 2020 until August 2020.

The matter in dispute concerns a decision by the Employer to retrospectively alter the recording of a sick leave absence from Covid -19 Paid Leave to certified sick leave for the period 10/4/2020 to 4/8/2020.

The Worker submits that the Employer should not have altered the Worker’s sick leave and payroll record and seeks a recommendation that the leave for the above period is recategorized as Covid 19 special leave with pay.   

The Employer disputes the claim and contends that the Worker’s sick leave record is correct.

The Worker commenced a new role with the Employer as a staff nurse in 2012 and since then has been working in a named theatre in a particular hospital.

In March 2020 the Worker was required to take sick leave due to a health condition. The Worker’s GP wrote to the Employer and recommended that due to her prior medical history the Worker should not be returned to work in a frontline role due to possible exposure to Covid 19.

On the 14/4/2020 the Employer’s clinical nurse manager wrote to her to confirm that because of medical advice and in consultation with the Director of Nursing that the Worker would remain on paid leave until further notice. The Worker was advised that there was no vacancy in contact tracing and that this was the only area that could guarantee the Worker, that she would not be in contact with a Covid-19 patient. The Employer’s clinical nurse manager stated in her email of the above date, “In the event there is any change I will be in contact with you to discuss same.”

The Worker provided regular medical certs from her GP which certified her fit for normal duties.  

The Worker remained on sick leave until 5/8/2020 when she was certified by her GP as fit to return to work.  It is submitted that at the end of June 2020, the Worker discovered that her absence record was changed from Covid 19 special leave with pay and reclassified as certified sick leave from the 10/4/2020. The Worker’s trade union representative submits that the Worker’s sick leave record was retrospectively changed without consulting her.

At the hearing the Worker stated that the first time she was advised that she was placed on Covid 19 special leave with pay was on 14/4/2020. The Worker also stated that the first time she was advised by her Employer that she needed to submit a letter from her consultant as per the named Guidelines regarding Very High Risk (Vulnerable) Healthcare Workers was in late May/early June. The Worker stated that she discovered at the end of June 2020 that her absence record was changed to reflect certified sick leave. The Worker further stated that she contacted her previous consultant for a letter and was advised that she needed a letter in writing from her employer, she advised the Employer of this and was told that her Employer would not write to the consultant.

The Worker’s SIPTU representative lodged a grievance on behalf of the Worker pursuant to the Employer’s grievance procedure regarding the revision of the Worker’s absence record.  The Worker exhausted all three stages of the grievance process without the matter being resolved. During the grievance process the Employer maintained that the relevant Circular authorising payment of Covid 19 special leave with pay required a consultant’s letter confirming the Worker was vulnerable to Covid 19. It is submitted that the Worker informed the Employer prior to and during the process that the Worker did not have a treating consultant but that she had contacted her previous consultant who required the request to be submitted in writing from the Employer. The Worker had requested same, but the Employer failed to issue the letter.

It is submitted that the Employer has a clear responsibility during the Covid 19 pandemic to protect vulnerable health care workers from exposure to the risks of contracting Covid 19. As a means of discharging that obligation the Employer took a multi-faceted approach to protecting at-risk members of staff. Those measures included the possibility of working from home, the option of relocation away from front line work and the application of Covid 19 special leave with pay.  

It is further submitted that the Employer had a responsibility to examine the feasibility of either relocating the Worker to a safer working environment or providing the opportunity of working from home rather than putting the Worker on Covid 19 special leave with pay. It is submitted that the Employer did little to explore the possibility of retaining the Worker in the workplace by providing alternative duties prior to placing her on Covid 19 special leave with pay.  

It is submitted that the Employer retrospectively applied criteria regarding the requirement for a consultant’s letter.  The Worker did attempt to secure the requested letter from her previous consultant.  

The Worker’s Union representative submitted that it is extremely poor practice for an employer to change the status of an absence record mid-way through the absence period. It is further submitted that the Worker has a significant medical history and needs to protect her entitlement to paid sick leave.  

It is submitted that the Employer has failed to act reasonably in respect of the Worker by initially granting the Covid 19 special leave with pay and then withdrawing it without discussion.

The Worker is seeking a recommendation that her sick leave record is amended to reflect the application of Covid 19 special leave with pay. It is submitted that this recommendation would not have any additional financial implications for the Employer but would protect the Worker’s entitlements under the Employer’s sick leave policy.

It is the Employer’s understanding that the Worker’s dispute refers to her SAP (payroll) record during a period of absence that was recorded as certified sick leave rather than Covid 19 special leave with pay.

It is submitted that the Worker was absent from 25/3/2020 to 4/8/2020. The Worker provided a medical certificate during that period which stated she was unable to attend work due to a medical condition.  It is submitted that the Worker was advised to wait for the result of a Covid test. Subsequent certification from the 9/4/2020 to 31/7/2020 stated that the Worker “was fit for normal duties and was commenced on special covid leave as per her line manager”.

The Employer received a complaint pursuant to the grievance procedure by email on 12.01.2020 from the Worker’s SIPTU Representative, regarding the revision of the Worker’s sick leave record.

The Employer acknowledges that all three stages of the grievance process were exhausted, and the grievance was not upheld.  The Employer submits that one of the actions from a meeting on the 2/11/2021 was that the Worker would provide additional documentation in the form of a letter from her consultant. The Employer confirmed that the Worker did not provide any additional medical documentation.

At the hearing the Employer’s clinical nurse manager confirmed that she sent an email to the Worker dated 14/4/2020 stating that she was placed on paid leave because she was considered a “Vulnerable” worker. The Employer’s clinical nurse manager confirmed that alternative avenues were explored with her line manager and the only alternative was to work in contact tracing which was suggested to the Worker. 

The Employer’s clinical nurse manager stated that she took the decision in consultation with the Worker’s line manager to place the Worker on Covid 19 special leave with pay on the understanding that the Worker met the criteria to establish her status as a “Vulnerable” worker.  Furthermore, she stated that she did consult the named Guidelines Pregnant Healthcare Workers, Very High Risk (Vulnerable) Healthcare Workers and High Risk (Other Pre-Existing Disease) Healthcare Workers Version 6.1. dated 30/03/2020 (the named Guidelines) and that she was aware, per the Guidelines, that a consultant’s letter was required.  

The Employer’s clinical nurse manager stated at the hearing that the first time the Worker was requested in writing to submit a consultant’s letter was on the 30/6/20 and she confirmed that during a phone call with the Worker at the end of May the Worker was also requested to submit a letter.    

At the hearing the Employer’s representative stated that the decision was taken in July 2020 to change the Worker’s absence record without consulting her, which it submits is “normal practice”.

The Employer’s representative confirmed that the reason for the requirement in the named Guidelines, was to ensure a letter from a consultant was provided which specified a particular illness and established that because of the illness the healthcare worker should be considered a “Vulnerable” worker. 

The Employer relies on two named documents, firstly the named Circular 027/2020 regarding guidance to the Public Service Employers during Covid 19 regarding Covid 19 Special Leave with Pay Arrangements (the named Circular) and the named Guidelines. The Employer submits that the following advice from a named body is relevant regarding the category of “Vulnerable” “Very High Risk” or “High Risk” Healthcare worker, in the relevant part:

“As per the government guidance Vulnerable', Very High Risk', or 'High Risk' Healthcare workers should not be at work.

These healthcare workers must provide their manager with a letter from their treating specialist confirming their 'Vulnerable HCA' status. ……“

It is submitted that management clarified with the Worker on numerous occasions by letters dated 23.3.2020,27.3.2020,10.4.2020,30.6.20,20.7.2020, 24.7.20, the requirement to submit supporting documentation from a medical practitioner that established the Worker’s status as a vulnerable healthcare worker. The Employer confirmed that the Worker did not submit the required medical documentation. 

 It is further submitted that the Worker did not meet the criteria outlined in the named Circular, that she was asked to provide appropriate medical certification which she did not submit.

The Employer also submits that as the Worker did not receive a positive test result for Covid 19 she was not recorded for Covid 19 Special Leave with Pay.  

In conducting my investigation, I have listened to and considered all relevant submissions both written and oral presented to me by the parties.  

The Worker’s trade union representative submits that it was unfair and unreasonable of the Employer to retrospectively alter the Worker’s sick leave record to reflect certified sick leave and seeks a recommendation to amend the Worker’s absence record to reflect the absence as Covid 19 special leave with pay.

The Employer denies the claim for the reasons outlined above and maintains the Worker’s absence record is correct.

My role here is to examine the merits of the dispute in line with the standards of fairness and reasonableness. I am mindful that both parties are in a live working relationship, therefore, my role here is to try and assist the parties reach a resolution of the dispute.

I accept the statement from the Employer’s clinical nurse manager who stated that the first time the Worker was verbally requested to submit a consultant’s letter, was during a phone call at the end of May and requested to do so in writing on the 30/6/20. Accordingly, having read the documentation referred to, I do not accept the Employer’s submission that the Worker was requested on numerous occasions during her absence starting with letters dated 23.3.2020, 27.3.2020, 10.4.2020, to submit supporting documentation from a medical practitioner that established her status as a vulnerable healthcare worker.

I accept the statement from the Employer’s clinical nurse manager that she took the decision in consultation with the Worker’s line manager, to place the Worker on Covid 19 special leave with pay on the understanding that she was a “vulnerable” health care worker. I note that the clinical nurse manager sent an email dated the 14/4/2020 advising the Worker that her GP had recommended in a letter dated 18/3/20 that she should not be part of the frontline staff and that “adhering to the clinical advice of your GP” the Worker would remain on “paid leave until further notice”.

It is clear to me from the correspondence and statement from the Employer’s clinical nurse manager at the hearing, that management had accepted the medical advice from the Worker’s GP set out in his letter dated 18/3/2020 as sufficient to establish the Worker’s status as a “vulnerable” health care worker. I further note and accept the statement from the Employer’s clinical nurse manager that she approved the Worker for Covid 19 special leave with pay in the full knowledge that the named Guidelines allegedly required a consultant’s letter.  It appears to me that at some later stage management changed their view on this matter and subsequently requested a consultant’s letter to confirm the Worker’s “vulnerable” status.

It is clear from the Employer’s correspondence and submissions at the hearing that the Worker was not advised at the time the Covid 19 special leave with pay was approved that approval was conditional upon any other criteria.

I further note from the email dated 14/4/2020 that when the named leave was approved it was stated to the Worker that “In the event there is any change I will be in contact with you to discuss same.” I note that the Employer did not consult with the Worker prior to recategorizing her sick leave record in July 2020, which the Employer submits is “normal practice”.

I note that the Employer relies upon the named Guidelines and refers in their submission to advice from a named Body in relation to an identical category of workers which I interpret given the similar wording to refer to Section 3 of the named Guidelines.

The Employer refers to this section as stating:- 

“These healthcare workers must provide their manager with a letter from their treating specialist confirming their 'Vulnerable HCA' status.”

I refer to the named Guidelines and note the advice for Very High Risk (Vulnerable) Health Care Workers at Section 3 which states as follows;

“3. Advice for Very High Risk (Vulnerable) Health Care Workers

3.1   As per the government guidance Very High risk or “Vulnerable” Healthcare Workers should not be at work …………………

3.2 These HCW can provide their manager with a letter from their treating specialist confirming                their “Vulnerable HCW” status. “

I note in relation to the above Guidelines, Section 3.2 refers to the word “can” whereas the Employer referred in their submission to the same section as stating “must “.   It is my view that the word “can” has a different meaning to the word “must” which conveys a mandatory obligation, whereas the word “can” suggests that the condition is optional, rather than mandatory.

Considering the wording of Section 3.2 of the Guidelines, I am not convinced that the requirement to submit a consultant’s letter was a mandatory condition. Accordingly, it is my view that it was open to the Employer to approve the Worker for Covid 19 special leave with pay, without a consultant’s letter, particularly, because the Worker had submitted a letter from her GP, which was accepted by the Employer.  

Accordingly, I find that it was not fair or reasonable of the Employer to change the Worker’s absence/payroll record unilaterally and retrospectively, to certified sick leave based on the following reasons: -

·        the Worker was granted Covid 19 special leave with pay on the understanding that she did meet the criteria of “Vulnerable” healthcare worker based upon a letter from her GP and was notified of same,

·        the Worker was not advised of the alleged requirement to submit a consultant’s letter until sometime later during her absence period,

·        the Employer should have satisfied itself that all conditions underpinning the leave were met prior to approving same,

·        it is my understanding of the named Guidelines that it is not a mandatory requirement to provide a consultant’s letter to establish a healthcare workers “vulnerable” status, as suggested by the Employer.

In the circumstances of this case, I find merit with the Worker’s case. I am mindful of the fact that the Worker is a healthcare worker who is working in an environment where she is exposed to the risk of infection daily and stated that she has a significant medical history.  Accordingly, access to paid sick leave is an important entitlement for the Worker and indeed for all healthcare workers.

It is my view that an employer should ensure that all conditions pertaining to leave are complied with prior to, or at the time of approving the leave, in line with best practice in industrial relations matters and to ensure consistency and certainty for employees regarding their leave entitlements.

I note from the Employer’s absence/payroll record set out in their submission that the Worker is recorded for Covid 19 paid leave from the 25/3/2020 to 9/04/2020, as certified sick leave on full pay from the 10/04/2020 to 08/07/2020 and as certified sick leave on half pay from the 11/07/2020 to 04/08/2020.   

Accordingly, I recommend that the Employer changes the Worker’s absence/payroll record to reflect the original categorisation of leave as Covid 19 paid leave for the period 10/04/2020 – 04/08/2020 and pays the Worker any arrears of salary owing to her as result of the recalibration of her absence /payroll record.

Covid-19 paid leave – Guidelines – recalibration of sick leave/payroll record