Worker

Employer

Anonymised Parties

Senior Lecturer

Educational Institute

Representatives

Aine Moynihan BL instructed by BDM Boylan Solicitors

Sarah Daly BL instructed by Ronan Daly Jermyn

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-00032095-001

11/11/2019

The employee has been employed by the employer since September 2000 and now holds the grade of Senior Lecturer.  The employee has unfortunately suffered ongoing ill health since 2015 when she first became pregnant.  The employee has two periods of maternity leave, in 2016 and 2018, and periods of pre and post pregnancy certified sick leave.  The employee referred a dispute pursuant to Section 13 of the Industrial Relations Act to the Workplace Relations Commission on 11 November 2019.

The employee raised eight issues of dispute in the complaint form.  The issues include an alleged failure by the employer to:

·         properly advise the employee on sick leave and pregnancy related sick leave schemes,

·         provide the employee and her income continuance provider with appropriate information and documentation

·         respond to requests from the employee in a timely manner

·         provide the Department of Social Protection with appropriate information in a timely and reasonable manner as requested

·         provide an appropriate Occupational Health Physician (OHP) to carry out pregnancy related sick leave and critical illness protocols and to provide the employee with details of those protocols

·         exercise its discretion to provide critical illness and/or pregnancy related sick leave

·         correct errors made in the calculation of pay related to pregnancy related sick leave and critical illness

·         inform the employee about the appeals process when requested to do so by the employee and to initiate any such appeal.

The employer acknowledges the employee’s difficult period of sick leave and the reasons for same.  The employer operates a complex sick leave payment scheme in addition to a maternity payment scheme.  It is acknowledged that due to the varying status of the employee’s leave periods and the complexity of the schemes in place, there were occasions where the employee’s leave was incorrectly categorised and/or incorrect payments were made.  It is the employer’s position that any errors were inadvertent, and the employer has made a number of attempts to try to identify and correct any discrepancies.  The employer has at all times been anxious to resolve the matters on a satisfactory basis.

The employee is employed as a Senior Lecturer.  She commenced employment in 2000. 

In 2016 the employee was on maternity leave from 04 January to 01 July.  From 01 September 2016 to 04 January 2017 the employee was on medically certified post pregnancy sick leave.  The employee alleges the employer failed to provide her income continuance provider with relevant information in a timely manner which caused a delay in the payment to her.  The application was finally processed on 18 August 2017.

The employee’s second maternity leave ended on 22 October 2018.  She was then placed on full sick pay until 14 February 2019.  The employee was placed on nil pay from 14 February 2019.  The employer should have made provision to assess the employee for Temporary Rehabilitation Remuneration (TRR) and Critical Illness Protocol (CIP) in line with Circular 0062/2015 and sent all relevant information to the employee’s income continuance provider.  The employee had authorised the release of the relevant information to her income continuance provider on 28 November 2018.  The employee had no income between 04 February and 30 August 2019.  In such exceptional circumstances the employee’s income continuance provider decided in August 2019 to grant her emergency monthly partial payments.

Failure to Provide Information

The employer failed to provide essential information to the Department of Social Protection in a timely fashion in order for an application for a disability pension to be processed.  There was a delay of eleven months in providing this information.  The application was finally processed on 14 November 2019.  The initial information provided to the Department contained inaccurate information about the dates of sick leave, maternity leave and annual leave.

Non-Payment of Temporary Rehabilitation Remuneration (TRR)

The employee asserts that she should have been assessed for TRR from 10 October 2016 to 04 January 2017.  The employer decided to place her on unpaid leave and to commence her TRR entitlement from 06 March 2017.

On 05 March 2019 the employee received an email from the employer informing her she should have been placed on nil pay from 14 February 2019 as she had reached the maximum number of paid sick days on 13 February 2019.  She had therefore been overpaid.  The employee understood that an assessment for TRR by an OHP should have taken place soon after this date.  As no assessment was arranged the employee wrote to the employer and the President of the institute on 21 June 2019.  An assessment with the employer’s OHP took place on 04 July 2019.  The report of the assessment was received by the employee on 12 August 2019.  The report recommended the employee would be eligible for TRR.  The employee finally received confirmation of her eligibility for TRR from the employer on 12 November 2019.  On the same day the employer informed the employee that it needed to review her salary as it seemed that deductions for illness benefit for the years 2015 to 2019 had not been made.

The employee’s income continuance provider sent numerous requests to the employer for details of TRR since November 2018.  The employer failed to provide the information in a timely manner.

Errors In Calculations

The employee asserts that errors have occurred in records that resulted in incorrect payments to her.  In 2015 the employer failed to record 25 days of pregnancy-related sick leave.  As a result, the employee was placed on nil pay on 02 September 2016.  This matter was referred to in correspondence from the employer dated 12 July 2017.   The employee wrote to the employer on 21 July 2017 and requested that no deductions would be made until she had the opportunity to appeal decisions of management communicated to her on 12 July 2017.  The employee states that when a proper review of her sick leave record was conducted, she had no objection to deductions being made, as long as they were fair and correct.  Deductions were made but they seem to be at variance with the deduction specified in the letter of 12 July 2017.

On 14 February 2019 the employee went from full pay to nil pay.  She believes she should have been placed on half pay on that date. 

The employee believes errors were made in recording her pregnancy related sick leave in 2017.  The employee believes that errors were made in recording her annual leave allowance between 2017 and 2020. 

The employer informed the employee of errors in making deductions for pension contributions between 2017 and 2019.

The employer failed to deduct illness benefit payments received by the employee from the Department of Social Protection during a four-year period. 

The employer deducted a strike day from the employee’s pay when she was maternity leave in 2016.  This error was acknowledged in November 2019.

Pension deductions were not made for a period in 2017, 2018 and 2019 and this needs to be resolved.

Appeals Procedure

The employee requested information about the appeal procedure for management decisions on 27 January 2017.  The employee again requested to be advised of her rights to appeal management decisions on 21 July 2017.  The response to these requests, received on 22 November 2017 was insufficient and unsatisfactory.  The employee also notes that when she received a communication after an OHP appointment the appeal procedure was not communicated with the relevant management decision.

Failure to Respond to Requests

The employee was regularly in contact with the employer since 2016 about her sick leave, maternity leave, pay, income continuance, social welfare, and sick leave records.  Throughout that time the employer either failed to respond or didn’t respond in a timely manner.  The lack of response caused the employee to feel isolated and fearful for her job.  The employee requests clarification on her exact position, title and qualifications and her pay scale and pay grade. 

Failure to Provide Information

Since the employee commenced sick leave, the employer has failed to provide her with information about her sick leave, maternity leave, pregnancy related sick leave, annual leave, critical illness protocol and TRR.  The employer has failed to provide a copy of the employee’s sick leave record on an annual basis as they are obliged to do under Circular 0062/2015.

Failure to Exercise Discretion

In assessing the employee for Critical Illness (CIP) the employer failed to exercise its discretion.  The employer made an initial decision not to grant CIP prior to the employee’s assessment with the OHP. The employee was seen by the OHP on 12 January 2017 and again on 04 July 2019.  However, in March 2019 the employer circled “no” to CIP on the form submitted to the employee’s income continuance provider.

OHP Appointments

The employee has concerns about the process of OHP assessment.  In 2017 following an assessment the OHP issued one report dated 12 January and a second dated 19 January.  The employee believes the reports contradict each other.

In 2017 when being assessed for Critical Illness the employee believes the OHP failed to consider information presented by her GP.

The employer did not provide the employee with a copy of the referral form prior to each appointment with the OHP.

The employee considers she was discriminated against because of her pregnancy and subsequent sick leave.  She feels she has been shown a lack of compassion while in a vulnerable physical condition and felt isolated.  The employer has not exercised its duty of care to her during her pregnancy.  She suffered financial loss due to errors of commission and omission by the employer.

The employee seeks the following redress:

Financial compensation for the upset, stress, distress, and anxiety caused.

Redeployment to Munster Technology University or a suitable position withing the public service, when deemed medically fit.

A full resolution of ongoing TRR and all pay-related issues

A complete independent review of all pension deductions / lack of deductions.

A statement of the employee’s present position to include current salary, point on salary scale and current income.

Address outstanding letter to the income continuance provider.

The employee’s representative provided the following points on 19 July by way of response to the employer’s document of 16 June 2022.

The employee noted that the employer did not provide her with copies of the OHP reports dated 12 and 19 January 2017.  The employee obtained these reports trough a Freedom of Information Request.

The employee contends that she at all times complied with the requests made by the OHP for medical reports from her consultants.  The employer and the OHP were communicated with by the employee about the up-to-date medical reports being sought from her consultants.

The employee does not accept that the delay in receiving consultant’s reports between January 2017 and May 2017 was the cause of the delay in assessing her for CIP and TRR in 2016/2017.  The employee believes the employer should have arranged an appointment with the OHP in a timely manner.  The employer also delayed by a further two months communicating the recommendation of the OHP to the employee.

The employee requested information about an appeal procedure from the employer.  The employee states that information about the mechanism of appeal of a management decision was not brought to her attention in the letter of 12 July 2017 from the employer.  She accepts that the letter of 22 November 2017 had enclosed a copy of Circular 0063/2015, but she was only referred to Section 12.1 regarding a deduction of overpayment of salary.  There was no reference to the mechanism of appeal contained in Appendix B.  The employee notes that she asked on two occasions, 27 January 2017 and 21 July 2017, for the necessary details of the mechanism of appeal of management decisions in line with the relevant grievance procedure for academic staff.  The employee did not receive a copy of the employer’s grievance procedure until 27 May 2018.

The employee states that she encountered significant delay in setting up appointments with the OHP.  Forms filled in for her income continuance provided in 2017 and 2019 indicated that a management decision had been made not to grant her CIP.  In 2019 that decision was communicated before the OHP assessment.

The employee notes that on each occasion after assessment by the OHP the mechanism of appeal of management decisions was not communicated to her along with the management decision.

The employee maintains that the issues about information being communicated to her income continuance provider are a serious breach of the employer’s duty of care to her.

The employer is an educational institute.  The employee is a Senior Lecturer and she commenced employment in September 2000. 

The employee experienced ongoing ill health since 2015 when she became pregnant.  The employee has had two periods of maternity leave, in 2016 and 2018, and pre and post pregnancy sick leave.

The employer operates a complex sick leave payment scheme, in addition to a maternity payment scheme.  It is acknowledged and accepted that due to the varying status of the employee’s leave periods and the complexity of the schemes in place, there have been incidents where the employee’s leave has been incorrectly categorised and/or incorrect payments have been made.

The employer’s position is that any errors have been inadvertent, and the employer has made several attempts to try and identify and correct any discrepancies.  However, due to the complexity of the issues involved the parties, despite various attempts to engage, have been unable to reach agreement.

It is also noted that in addition to raising queries in respect of the making of financial payments, the employee has also indicated her intention to seek redress for non-pecuniary matters, namely alleged anxiety and stress caused by the attempts to address any payment errors.  It is the employer’s position that the making of such an award falls outside the role of the Workplace Relations Commission in this matter.

The employer remains committed to identifying and addressing any instances where the employee’s sick leave and/or maternity leave payments have been incorrectly applied.

Factual Background

The employee became pregnant in 2015.  The employee had been absent from work since then due to a combination of ill health and maternity leave.  The following are the relevant dates:

o   04/09/2015 – 12/10/2015 – Pre pregnancy certified sick leave.

o   04/01/2016 – 01/07/2016 – Maternity leave.

o   01/09/2016 – 04/01/2017 – Post pregnancy certified sick leave.

o   05/01/2017 – 03/03/2017 – Pre pregnancy certified sick leave (followed by miscarriage)

o   06/06/2017 – 26/10/2017 – Post pregnancy certified sick leave.

o   27/10/2017 – 20/04/2018 – Pre pregnancy certified sick leave.

o   23/04/2018 – 19/10/2018 – Maternity leave.

o   20/10/2018 – Present – Post pregnancy certified sick leave.

The employee has raised queries in respect of the payments made to her in relation to maternity leave, sick leave, pregnancy related sick leave entitlement, TRR, pension contributions and annual leave.

The employee has also raised queries regarding the employer’s engagement/response in relation to entitlements to Critical Illness Payment (CIP) and the submission of documents to her income continuance provider.

In February 2020 the parties sought an adjournment of the hearing for the purpose of having an assessment carried out by an independent person of any amounts due and owing either to or from the employee, arising from the sick pay scheme and other related matters.  An agreed independent reviewer, who has considerable experience in this employment sector, was appointed.  Both parties had the opportunity to present information and engage with the reviewer during the course of the preparation of the report.  The employer fully engaged with the independent reviewer and provided records and documents.  Unfortunately, the employee advised the employer she no longer considered the reviewer acceptable as an independent reviewer, but never explained the basis of this view.  The report was made available to the employee and submitted to the WRC when the dispute came on for hearing in May 2021.

Maternity Leave

The employer’s maternity leave scheme provides employees with full pay for a period of 26 weeks, less the deduction of the State maternity benefit.  The employee had two periods of maternity leave on the following dates:

o   04/01/2016 – 01/07/2016

o   23/04/2018 – 19/10/2018

The employee was paid her full maternity pay entitlement for each period of leave, less the deduction of the State maternity benefit.  There was a payroll deduction of one day in connection with a national third level strike.  This day was deducted in error.  The employer accepts that the employee is due a payment for one day of €221.39 gross.

Sick Leave Payment

The employer operates the sick leave payment scheme as provided in Pay Circular 0062/2015.  Under Ordinary Illness Provisions an employee may be paid full pay for 92 days, followed by half pay for 91 days, subject to a total of 183 in a four-year rolling period, based on a 7-day working week.  Where the working week is based on 5 days the maximum is based on 65 days full pay and 65 days half pay. 

The sick pay scheme provides for the deduction of the State illness benefit from the employees full or half pay.  The employee is required to provided information of the illness benefit to the employer. In this case the employee failed to provide such information for a period and so, the required deductions were not made for a period.  The result is that the employee has been overpaid in the amount of €9807 as a result of deductions not being made.

Pregnancy Related Sick Leave Payment

Circular 0062/2015 provides that a staff member who is medically unfit for work due to a pregnancy related illness will not receive less than half pay for the duration of her pregnancy-related illness, prior to going on maternity leave.  In this case the employee suffered pregnancy-related illness.  As she had exhausted her entitlement to ordinary sick leave payment, she became entitled to additional periods of half-pay during periods of pregnancy-related illness.

In 2018 the employee unfortunately suffered a miscarriage.  The employee was on medically certified sick leave after the miscarriage.  Her GP classified her illness following her miscarriage as pregnancy related.  This classification was not in line with the internal guidelines.  The employer arranged for the employee to be examined by its OHP.  The report from the OHP confirmed that the employee’s ill health did not qualify as “pregnancy related illness”.  The employer also sought guidance from the relevant Government department.  The employer was advised that pregnancy related illness was only applicable while an employee is pregnant and did not apply for periods of illness after the pregnancy ended.  In those circumstances the employee’s entitlement to half pay concluded once her pregnancy ended. 

It is the employer’s position that the employee received her full payment entitlement in respect of any periods of pregnancy related sick leave payments due.

Temporary Rehabilitation Remuneration (TRR) Scheme

Circular 0062/2015 provides a TRR scheme where an employee has exhausted their period of paid sick leave, subject to certain conditions.  The OHP must confirm that there is a reasonable prospect of recovery and return to work.  The employee must have a minimum of 5 years’ service in a pensionable position.  TRR is calculated on pensionable pay and paid pensionable service accrued in the employment at the time paid sick leave was exhausted.

The employer accepts that the employee was entitled to be paid 87 days TRR from 10 October 2016 to 04 January 2017.  The value of these days is €3888.90 as per the relevant calculations.

The employee received 169 days TRR payments in 2017.

The employer also accepts that the employee was entitled to be paid 136 days TRR in 2019.  The value of these days is €9597.74.

The employer acknowledges that the employee is due payment as set out above.  However, the employer is under an obligation to ensure that any payments made to the employee must include deductions for known overpayments.  The employer is not in a position to discharge the employee’s outstanding TRR payments until agreement is reached about the repayment of the overpayments.

Pension Contributions

The employee is a member of the superannuation scheme.  The scheme operates by way of a retention by the employer of an amount of the employee’s annual salary and in addition the employee contributes by deduction from their salary.  The deduction is made by the employer.  However, for periods of time when the employee was on sick leave benefit the deduction was not taken from her payments.

The employee is required to pay the sum of €6083.59 to the employer so that the employee’s pension arrangements may be regularised.

It should be noted that where a pension payment deduction is delayed, for whatever reason, the employee suffers no detriment so long as the payments are paid, and the pension arrangements are regularised in advance of his/her retirement.

Annual Leave

The employer is an educational institute which operates academic terms.  The maternity scheme provides that generally there is no accrual of annual leave during periods of maternity leave as there is sufficient time off during the remainder of the year to meet the statutory leave requirements.

In accordance with the Organisation of Working Time Act 1997 annual leave continues to accrue to the employee during periods of sick leave.  An employee is entitled to avail themselves of any accrued, but untaken, leave within 15 months of the end of the leave year to which it relates.

The employee in this case has not returned to work so her annual leave entitlements have not yet crystalised.  If an employee does not avail of accrued annual leave within the 15 months of the end of the leave year to which it relates, then the entitlement ceases.  There are currently no outstanding annual leave entitlements due to the employee.

Critical Illness Payment (CIP)

The employee has asserted that she was entitled to CIP during a period in 2017 and again in 2019.  The employer’s sick leave arrangement provides that where an employee is incapacitated as a result of a critical illness or serious physical injury and has supporting medical evidence for an extended period of sick leave, the employee may, on an exceptional basis, be granted paid sick leave having exhausted their normal sick pay entitlement.

The granting of exceptional extended paid sick leave is a decision of management having considered occupational medical advice.  The employer has a ‘discretion’ as to the payment of CIP.  It is the employer’s practice to exercise this discretion in a consistent fashion and strictly adhere to the assessment of its OHP as to whether or not an employee is eligible for this cover.

The employer wrote to the employee on 24 January 2017 to advise details of the CIP scheme.  The employee was advised that she would need to provide an up-to-date report from her treating consultant with specific details in respect of her illness.  When such report was received the OHP would then assess her eligibility for CIP.  The employee was also advised that once the OHP had assessed her the employer would be able to complete the relevant forms for the employee’s income continuance provider.  Having received the relevant consultant’s report, the OHP issued the assessment report to the employer on 10 May 2017.  The OHP’s assessment was that the employee did not meet the criteria to qualify for CIP.  The employer wrote to the employee enclosing a copy of said report and setting out information regarding why the application had been denied.

The employee was re-assessed for CIP as requested on 04 July 2019.  The OHP again deemed the employee not eligible for CIP.  The employee was sent a copy of the OHP report.  The OHP stated that based on the medical information provided she did not believe the employee was eligible for CIP payments.  The OHP also noted that at the employee’s request she had reconsidered the 2017 CIP decision and discussed the medical information provided with a colleague, but her opinion remained unchanged.  The employee was not eligible for CIP in 2017 or in 2019.

Submission of Documents to Income Continuance Provider

The employer agrees that there was a delay in the submission of documentation to the employee’s income continuance provider. However, it was explained to the employee that the employer was unable to complete the relevant documents until a decision had been made about the entitlement to CIP.  The employer in the letter of 24 January 2017 had informed the employee that the documents required by the income continuance provider could not be completed until the OHP assessment was completed.  The employee was always aware of the reason for the delay in providing the relevant documents to the income continuance provider.

Conclusion

The employer restated that it was committed to identifying and addressing any instances where the employee’s sick leave and/or maternity leave payments had been incorrectly applied.

At the start of the hearing the parties asked for time to work together to try to resolve some of the issues.  The parties were given time and a number of the issues set out above were agreed.  The agreed issues are set out below in the conclusions of the investigation of this dispute.

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

The issues in dispute involve the application of complex schemes for sick leave payments, maternity leave and pregnancy related sick leave payments and discretionary benefits arising over a period of several years. 

The parties at the second hearing asked for time to try to resolve the issues in dispute.  The parties were given time as this is a dispute referred under the Industrial Relations Act 1969. The purpose of the Industrial Relations legislation is to promote harmonious relations between workers and their employers and the resolution of disputes where they arise.  The parties did reach agreement between themselves on several issues which are now set out below.  The remaining issues in dispute are dealt with in the recommendation.

Background

The employee is a Senior Lecturer and is held in the highest regard as a lecturer and academic by the employer.  Unfortunately, the employee has suffered ill health over a prolonged period requiring her to be absent from work on medically certified sick leave and maternity leave since 2015.

The employee has been on maternity leave twice, in 2016 and in 2018.  In addition, the employee suffered a miscarriage in 2017.  The employee was ill before and after each maternity leave and throughout her pregnancies.  The employer provides a paid sick leave scheme and paid maternity leave.  Complications have arisen from the interaction between the various payment schemes, entitlements, and discretionary benefits.

Report

When this dispute was first due for investigation the parties agreed to try to find a resolution to the issues by appointing an agreed independent person to review the leave entitlements and how those entitlements had been implemented.  The review was to cover sick leave, maternity leave, maternity related sick leave, temporary rehabilitation remuneration (TRR), pension contributions and annual leave.  After the appointment of the reviewer the employee’s representative advised the employer that the reviewer was no longer acceptable as an independent reviewer for unspecified reasons.

A report was prepared by the previously agreed person and was submitted on the second hearing date.   The parties were granted an adjournment, on consent, to consider and reply, if necessary, to the report.  The reviewer produced a detailed report based on information supplied by the employer. 

The employee having had time to consider the employer’s submission, including the report, worked with the employer to reach agreement on several items and calculations.  The following are the issues in dispute that were agreed directly between the parties:

o   Payment for maternity leave – it was agreed that the employee did received payment for both periods of maternity leave in line with her entitlement.  One error had been made by the employer when payroll made a deduction for one day.  That deduction related to a day when there was a strike by third level academic staff.  The employer acknowledged this error and agreed the employee is due payment for one day in the amount of €221.39.

o   Payment while on certified sick leave – Circular 0062/2015 details the sick leave arrangements for all staff employed in educational Institutes of Technology.  The scheme provides that when an employee is on certified sick leave and is being paid, either full or half pay, then the relevant State illness benefit must be deducted from the payment.  The employee is required to provide the employer with the relevant illness benefit information.  In this case the relevant deductions were not made for a period and that resulted in the employee being overpaid.  The parties agreed the amount of the overpayment is €9807.

o   Temporary Rehabilitation Remuneration (TRR) – Circular 0062/2015 provides that where an employee has exhausted their normal paid sick leave entitlement they may, subject to certain conditions, be granted additional payments under TRR.  The granting of TRR payments is conditional on an OHP confirming that there is a reasonable prospect of recovery and return to work.  It was agreed that the employee qualified for and was due TRR payments for 87 days from October 2016 to January 2017 and for a period of 136 days in 2019.  The amounts agreed as due are €3888.90 and €9567 giving a total due to the employee of €13,486.64.

o   Pension Contributions – The employer’s superannuation scheme operates by way of a retention by the employer of a sum equal to 6.35% of an employee’s annual salary plus a deduction is made from the employee’s annual salary as a contribution to the scheme.  While an employee is on sick leave the deductions should be taken from their sick leave payments, whether on full or half pay.  For a period of the employee’s sick leave pension deductions were not made.  It was agreed that it is for the employee to make the relevant pension contributions, estimated to be €6083.

Unresolved Issues

Circular 0062/2015 contains details of the Sick Leave Scheme.  The Scheme includes entitlements to the following:

o   Ordinary Illness Leave

o   Critical Illness Leave

o   Temporary Rehabilitation Remuneration

o   Unpaid Sick Leave

o   Maternity Related Illness Provisions

o   Annual Leave / Public Holiday Entitlement during periods of certified sick leave

All the above categories of entitlements must be considered in this case.  The interrelationship between the various categories was somewhat complicated because unfortunately the employee was ill before and after her periods of maternity leave in 2016 and 2018.

Maternity Related Illness Provisions

The employee had her first child in January 2016.  Her period of maternity leave ended on 01 July 2016 and in normal circumstances she would have returned to work on 01 September 2016.  Unfortunately, the employee was ill and was on medically certified sick leave from 01 September 2016. 

The employer’s sick leave scheme provides for paid sick leave, full pay and half pay, up to six months over a rolling four-year period.  The employee had periods of paid sick leave in previous years so it appears that she had exhausted her entitlement to ordinary paid sick leave by September 2016.  However, Circular 0062/2015 contains additional provisions relating to the interaction of pregnancy related illness with sick leave limits which may provide for additional paid sick leave.

The employee submitted a medical certificate from her GP that stated she had post pregnancy complications and the employer placed her on half pay from 02 September 2016.  The employer arranged for the employee to be seen by the OHP on 12 January 2017.  Following that appointment with the OHP the employer emailed the employee and advised that she did not “fit under the “pregnancy related category”, therefore as you have used your full sick pay entitlement you will be placed on nil pay with immediate effect”

The employer asserted that to qualify for additional sick pay under the Maternity Related Illness Provisions of Circular 0062/2015 two conditions apply.  The employee must be pregnant and be certified as suffering from a pregnancy related illness. 

The wording of the Circular is as follows:

“Where a staff member is medically unfit for work due to a pregnancy related illness, she will not receive less than half pay for the duration of her pregnancy-related illness, prior to going on maternity leave.  This is regardless of whether she has reached the maximum limit for half pay due to prior sick leave.”  (Emphasis added) 

In my opinion, because it is clear in the above quoted paragraph that the payment relates to a period prior to the employee going on maternity leave, it implies the employee must be pregnant to avail herself of this payment.  In addition, the employee must be medically certified as having a pregnancy related illness.  The purpose of the OHP report must be to provide the employer with a medical assessment of the illness the employee is suffering from during her pregnancy.

Based on the wording of Circular 0062/2015 I accept the employer’s assertion that the two conditions, being pregnant and having a pregnancy related illness, are necessary to qualify for this additional payment.

The email of 24 January 2017 made no reference to the requirement to be pregnant to qualify for this additional payment.  It is stated in the email that the employee was placed on half pay “based on your own doctor’s cert stating “pregnancy related illness”.  As the employee was not pregnant in September 2016 she could not qualify for the additional payment. 

The employee has now been informed that there are two conditions to be met if one is to qualify for additional payments under the Maternity Related Illness Provisions of Circular 0062/2015 which may only apply if the employee is pregnant.

I am satisfied that there was an error made by the employer in putting the employee on half pay in September 2016 in circumstances where she could not qualify for the pregnancy related payment because she was not pregnant.  I accept that the interrelationship of the various sick leave / maternity leave schemes may be complicated, but in my opinion this error was not identified and rectified by the employer as early as it should have been. In my opinion the employee has been paid her payments for pregnancy related sick leave as provided for in Circular 0062/2015 and there are no outstanding payments due to her.

The employee’s circumstances changed in January 2017 as she was again pregnant.  Unfortunately, the pregnancy ended in miscarriage at thirteen weeks.  However, the fact that the employee was pregnant changed her eligibility to qualify for Maternity Related Illness payments during the thirteen weeks of the pregnancy.

Critical Illness Payment

Circular 0062/2015 provides that an employee who becomes incapacitated because of a critical illness or serious physical injury may be granted extended paid sick leave, in exceptional circumstances.  The employee was twice assessed by the OHP for CIP.  Once in 2017 at the request of the employer and again in 2019 at the employee’s request.  The issue in dispute is whether the employer correctly exercised its discretion in deciding whether the employee should be paid CIP.

Having informed the employee that she did not qualify for the additional half pay from September 2016 under the Maternity Related Illness Provisions of Circular 0062/2015, the employer indicated that she would be assessed by the OHP, without a further appointment, to check if she was eligible for Critical Illness Payment.  If the employee qualified for CIP, she could have been entitled to full pay from 02 September 2016 for a further 103 days.

The employee was asked to provide the OHP with an up-to-date report from her treating consultant with all the following information: her diagnosis, treatment, prognosis, any dates of hospital admissions, and dates of discharge.  The employee was informed that once this information was provided to the OHP a decision would be made within 24-48 hours.

The employee was unable to obtain the relevant report and information for the OHP until late April 2017.  The OHP assessment was provided on 10 May 2017.  The OHP advised that the employee did not fulfil the criteria for CIP. 

In June 2019 the employer arranged to have the employee assessed for TRR.  The employee in reply asked to be assessed for CIP and expressed her shock that she had not been reviewed on an ongoing basis since 2017. 

The employee was assessed by the OHP on 04 July 2019.  The OHP reported that the in her opinion the employee was eligible for TRR.  The OHP considered the request from the employee to reconsider the assessment of 2017.  Having given the request due thought and discussed the medical information provided with a colleague the OHP’s opinion remained unchanged.  Her opinion was that the employee was not eligible for CIP.

Circular 0062/2015 states that the award of extended sick leave for critical illness or serious physical injury is a decision for the employer following receipt of medical advice from an OHP.  The criteria for the award of extended paid sick leave are set out in Appendix B (Critical Illness Protocol) of the Circular.  In each assessment, 2017 and 2019, the OHP was of the opinion that the employee did not meet the criteria for payment.  It is the position of the employer that consideration was given to the recommendation of the OHP and that their decision, as for all staff applications for CIP, is to follow the medical recommendation.

It is the employee’s position that the employer did not consider all the relevant factors before deciding not to grant her CIP. 

The CIP Protocol requires that the employer “must primarily consider the Occupational Medical advice” but that all the circumstances should be considered. (Emphasis added).  The word “must” imposes an obligation on the employer to consider the OHP advice before making a decision.  But, “should consider all the circumstances” is a recommendation and not an obligation.  In my opinion it is therefore open to the employer to decide to base its final decision on the advice from the OHP.

The employer may consider all the circumstances of each case to check if there are any exceptional circumstances that would merit the award of the payment.  However, the employer is not obliged to do so, as the only obligation is to consider the advice of the OHP before making a final decision.   

The Protocol provides for an appeal of both the medical advice and the management decision.  A management decision may be appealed through the Grievance Procedure.  I note that the employee in January and July 2017 and in May 2018 requested information about the relevant grievance procedure.  She was provided with a copy of the grievance procedure in May 2018.  I note the delay in providing the employee with a copy of the relevant grievance procedure and the frustration this caused her.  However, the employee did receive the relevant procedure in 2018 but did not submit an appeal of either the OHP’s or the employer’s decision.  An appeal of the 2017 and the 2019 decisions about CIP was available to the employee but was not pursued.

Delay / Incorrect Information

The employee asserted that she has suffered inconvenience, upset and financial hardship because of delay and the provision of incorrect information by the employer.  The employee referred to the time taken in 2016/2017 to set up an appointment with the OHP.  It is her view the employer failed to act in a timely manner in arranging the OHP appointment.  The employee was also of the view that she should have been continually assessed by the OHP so that no delay should occur with decision about CIP, TRR and/or Maternity Related Illness.  When seeking copies of OHP reports the employee obtained some through Freedom of Information requests rather than directly from the employer.

The employee was also of the view that information for her income continuance provider was not provided in a timely manner.

The employer acknowledged some delays in responding to emails and the provision of information to the income continuance provider.  However, the employer asserted that it at all times tried to assist the employee during her sick leave.

I note that following her maternity leave in 2016 the employee informed the employer she would not be returning to work on 01 September due to sick leave.  At that time, she requested a copy of her sick leave record.  Her sick leave information for the four years 2012 to 2016 was eventually provided in the letter of 12 July 2017.  In 2019 when the employee requested her sick leave record from 2014, she was sent a document which did not detail periods of full pay, half pay, TRR, or pregnancy related leave.  It is the employee’s position that the information provided did not meet the requirements of Circular 0062/2015. 

Having read all the submissions and documents provided and carefully considered the statements made at the hearing I am of the opinion that there were delays in providing accurate information to the employee and to her income continuance provider.  I note that Circular 0062/2015 states that “A detailed statement of all sick leave absences should be supplied to each employee on request or at least one report should be provided annually”.  The employee was not provided with an annual report of her sick leave absences.

I accept the employer acted to assist the employee while on sick leave but, the administration system lacked continuity and accuracy in this employee’s case.  The results were overpayments to be recouped, deductions not made and inaccurate information being provided to the employee, her income continuance provider and the Department of Social Protection.  Where there is an ongoing relationship of employer / employee such over payments and deductions must be accurately corrected, and payments made.  As set out above most of these payment issues were agreed directly between the parties at the hearing. 

Despite the best intentions of the employer delays did occur and errors were made that caused the employee difficulty during a time of illness. 

Annual Leave

The entitlement to statutory annual leave is provided for in the Organisation of Working Time Act, 1997.  During periods of certified sick leave statutory annual leave continues to accrue.  An employee is entitled to carry over such accrued annual leave for up to 15 months.  The entitlement must be availed of within 15 months of the end of the relevant leave year.

It is my opinion that the employee may avail herself of statutory annual leave in compliance with the provisions of the Organisation of Working Time Act and Circular 0062/2015.  Therefore, there is no outstanding annual leave due to the complainant.

Pension

Pension deductions were not made for a period when the employee was on sick leave benefit.  According to the employer’s submission the pension contributions due amount to €6083.59.  The parties agreed that the employee is to make the relevant payment.

I note the employer’s statement in their submission that where a pension payment is delayed, for whatever reason, the employee suffers no detriment so long as the payments are paid, and the pension arrangements are regularised in advance of his/her retirement date. 

To ensure the pension arrangements are regularised the employer should provide the employee with an up-to-date statement of contributions and benefits from the relevant Government Department responsible for superannuation.

Redress

The employee’s submission sought six items of redress.  The investigation of an industrial relations dispute between employer and employee provides for an opinion on the merits of the issues in dispute and a recommendation intended to resolve the dispute.  The investigation cannot deal with any claim of a personal injury or redeployment of an employee.

I note the employer’s statement in their submission that they are committed to identifying and addressing any instances where the employee’s sick leave and/or maternity leave payments have been incorrectly applied.

I also note the employer’s statement in their submission that it holds the employee in the highest regard as a lecturer and academic and the offer to provide a reference reflecting this view, if required, on foot of any application that might be made by the employee for a transfer.  The employer will provide the employee with a statement setting out her current salary, her point on the salary scale and other relevant details.

Recommendation

Having carefully considered the submissions and documents received after the hearing and setting out my opinion above I recommend the following:

o   The issues agreed directly between the parties, noted above, should be implemented and the payments and reimbursements completed.

o   The employer must provide the employee with the statement of her current salary, point on the scale and other relevant details of her employment.

o   I recommend that the employee accepts that the Maternity Related Illness Provisions contained in Circular 0062/2015 are conditional on the employee being pregnant and medically unfit for work due to a pregnancy related illness.  As the employee received her full entitlement in respect of pregnancy related sick leave when pregnant there are no outstanding payments due to her.  I do not recommend any change to the employer’s decision on this issue.

o   The CIP Protocol requires that the employer “must primarily consider the Occupational Medical advice” but that all the circumstances should be considered. (Emphasis added).  The word “must” imposes an obligation on the employer to consider the OHP advice before making a decision.  But, “should consider all the circumstances” is a recommendation and not an obligation.  In my opinion it is therefore open to the employer to base its final decision whether to award exceptional extended paid sick leave on the advice from the OHP.  In my opinion the employer met its primary obligation by considering the opinion of the OHP before making a decision.  I do not recommend any change to the employer’s decision.

o   I recommend that the employer provides the employee with an up-to-date statement of her pension contributions and benefits from the relevant Government department responsible for superannuation.  I recommend that any unpaid pension contributions by paid by the employee as soon as practicable so that her pension arrangements are regularised.

o   The employee may avail herself of statutory annual leave in compliance with the provisions of the Organisation of Working Time Act and Circular 0062/2015.  That is her entitlement and therefore I make no recommendation in respect of annual leave.

o   There was delay and there were errors in the administration of the employee’s period of sick leave and maternity leave.  The provisions of Circular 0062/2015 are comprehensive but the various schemes are somewhat complicated.  However, that is not an excuse for not dealing competently with sick leave payments and relevant deductions.  As the employee was at times overpaid and at other times on nil pay when she should have been paid and pension deductions were not made correctly, she has been inconvenienced and caused considerable frustration at a time when she was ill.  I believe that in all the circumstances it is fair and equitable to recommend that the employer pays to the employee compensation in the amount of €7,000 for the inconvenience caused to her by the administrative errors.  I recommend that the parties accept this payment is in full and final settlement of the issues in dispute between them.

Sick Leave

Maternity Leave

Maternity Related Sick Leave

Discretion

Critical Illness Protocol