Worker

Employer

Anonymised Parties

A Health Service employee

A Health Service Employer

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 - 00001873

12/10/2023

Having read circular 012/2022 the complainant applied for the pandemic recognition payment on as her service operated face to face with the public throughout the pandemic including the reference period from March 1st, 2020, to June 30th, 2021.

Emergency legislation was introduced that enabled the public to register births and deaths only without the requirement for the public to attend our offices in person to register births and deaths.

All other face to face services were excluded from the emergency legislation and continued throughout the pandemic. The complainant worked on site registering births and deaths and there was no scope to work from home to register life events at any stage throughout the pandemic.

The public attended our offices throughout the pandemic in person, face to face, to serve notice of intention to marry and the complainant met face to face with the public to serve notice of their intention to marry in person in the Registrar’s Office and for a period greater than four weeks during the reference period. Each of these appointments are 45 minutes in duration. This direct contact allowed for the acquisition or transmission of diseases that are spread by respiratory means.

Civil Registration staff were included in sequence 1h of the vaccination programme as they worked in an environment that warranted their inclusion. Our service was deemed ‘Priority 1’, face to face, frontline, demand led service throughout the pandemic. The complainant worked on site throughout the pandemic, initially without PPE or vaccination, with the associated increased risk to both her and her family of contracting Covid 19.

Payment was refused on the basis that she did not meet the criteria and an appeal was submitted in August 2022.

On February 13th, 2023, she was advised that the appeal had been turned down. It was noted on email was that the decision was final and binding and could not be appealed. No detail was given as to why we had been refused and when questioned were told that no notes were taken at appeals process and so there was no back up explanatory document available to us.

Civil Registration staff in other areas have been awarded and paid the pandemic recognition payment having worked throughout the pandemic in circumstances identical to staff in the Civil Registration Service in the Midlands.

In the interest of natural justice, the same criteria applied in other regions, will be applied to Civil Registration Staff in her area and the recognition payment will be made to all Civil Registration Service staff.

The complainant was employed as an Assistant Staff Officer in Civil Registration Services during the COVID-19 pandemic. COVID-19 was an extremely difficult time as it was a time of huge uncertainty delivering services to the public.

Thisperiod witnessed many changes inhowthe respondentdelivered its services.

In relation to employees and how they performed their duties, we were guided by the CMO and the DoH. This resulted in many changes for employees in the delivery of their day-to-day duties. Priority was given to direct care patient services; however, some services were closed, and staff were redeployed to priority areas.

The respondent’s employees were provided atlocation withtheappropriate guidelines andprotectiveequipmenttoensurethattheirhealthandwelfareneedswere metwhilst performing their duties during COVID-19 forexample PPE, social distancing guidelines and screens.

Members of the public were directed to remain at home if they were symptomatic or tested positive with Covid-19. An additional control was enacted in Civil Registration services under the Emergency Measures in the Public Interest (Covid-19) Act 2020 nationally from March 13th, 2020, to May 31st, 2020, further extended to August 31st, 2020, January 31st, 2021, and up to September 30th, 2021. For Civil Registration staff, this resulted in a reduction in footfall of the public attending Civil Registration offices as now a number of tasks such as registration of births and deaths could now be done online.

To guide managers during this challenging time, HR regularly communicated updates, guidelines, statistics, and policy changes. In relation to the current matter in hand, HR Circular 012/2022 Pandemic Special Recognition Payment set out the criteria for the eligibility for staff to receive this payment.

The eligibility criteria were for employees who between March 1sts 2020 and 30th June 2021 "worked in an environment which warranted their inclusion in Sequence 1 and 2 for the Vaccination programme".

Under the "Updated Sequencing of COVID-19 Vaccination of Frontline Healthcare Workers" dated January 2021, there is reference made to the vaccination sequencing for healthcare workers.

Sequence Group 1: Healthcare workers whose work involves direct physical contact with people who use healthcare services (frontline healthcare workers).

Sequence Group 2: Healthcare workers whose work does not involve direct contact with people but does involve contact with potentially infectious blood or body fluids or human remains in a controlled environment.

Further clarification was issued in the form of "Frequently Asked Questions" (Appendix II) where it states, "it should be noted that only those who were properly included within the sequence for the Vaccination Programme above, are eligible, and it does not apply to those who may have received a vaccination out of the intended sequence, who would not have fulfilled the criteria".

Civil Registration does not meet the criteria outlined in the above Sequence Groups 1 and 2 which are identified as Covid-19 exposed healthcare environments.

According to a Government decision, "this measure will be ring fenced to staff working ordinarily onsite in COVID-19 exposed healthcare environments within the period between 1 March 2020 and 30 June 2021. Eligibility will be based on the criteria used to identify those included in relevant vaccination sequence groups, inter alia this should cover frontline staff who were at increased risk in the course of performing their duties in a clinical setting - for the avoidance of doubt, where a person was working in such a setting, they are in scope".

Civil Registration staff may have worked four weeks in the specific period of March 1st, 2020, and June 30th, 2021, however the employer in considering this matter did not deem Civil Registration services a Covid exposed environment or a clinical setting.

A Dispute Resolution Committee was set up nationally and the Terms of Reference were agreed between the respondent and the Trade Unions. All appeals in relation to the non-payment of the Special Pandemic Recognition Award were referred to the Dispute Resolution Committee.

The complainant appealed the decision of local management to the Dispute Resolution Committee for their consideration as outlined in NER Memo 03/2022.

In relation to the complainant, her appeal was not upheld by the Dispute Resolution Committee. In the NER memo it states that "all decisions of the Dispute Resolution Committee will be binding, and no further appeal is allowable".

Local management in handling this matter has followed the relevant policy guidelines and Government decision which directed the Department of Health to provide special additional financial recognition to eligible frontline health care workers.

The complainant did not meet the policy criteria as set out in Pandemic Special Recognition Payment. The Dispute Resolution Committee was also of the opinion that the complainant did not meet the criteria as set out.

The line management and the Dispute Resolution Committee independently concluded that the complainant does not meet the criteria to warrant payment of the Pandemic Special Recognition Payment.

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

The facts of the matter are well set out above. The complainant works in an administrative capacity in Registration Services and continued to do so throughout the pandemic period; vital work for those needing the service.

She was in direct contact with the general public and thereby exposed to the risk of contracting the virus, notwithstanding the various preventive measures that were put in place.

The Government introduced a special payment for what are often loosely and unfairly in the context of all those it takes to deliver our health services referred to as ‘frontline workers.’ I use it here reluctantly and for the sake of convenience.

The Circular Letter, in a non-exhaustive list defined these as follows.

Health Care Assistants, Support Staff employed by XXX/Section 38 employers such as Cleaners/ Maintenance/ Porters/Catering/Clinical Waste/CSSD, Ambulance (Paramedics) staff, Administration staff that meet the criteria, e.g., ED Reception, OPD staff, etc., Consultants, Nurses/Midwives, Medical Laboratory staff, Health, and Social Care Professionals, NCHDs, Swabbers, Vaccinators and Health Care Support Assistants (also known as home help/ home care/ home support).

It will be seen that there is reference there to certain categories of administrative staff.

Initially there was an assessment of entitlement by the regional management in the regional unit where the complainant is based. It found that she did not meet the criteria and while this fact was communicated to her, she was not told which criteria she did not meet.

The system provided for an appeal which was heard by an agreed joint union management body set up as a final appeal. The complainant confirmed at the hearing that she understood before submitting her appeal that it was a final appeal. She was at something of a loss to explain why she was nonetheless now seeking a further appeal.

The appeal appears to have taken the form of a desk review and the complainant was advised in due course that it had not been successful, but this time not given the courtesy of any explanation why.

She faces a number of obstacles in pursuing a case under this legislation.

In the first instance, she is not alone in pursuing it; the respondent’s representative told the hearing that she is aware of around eleven other cases which she believes have been referred to the WRC, so this is in danger of falling foul of the restriction on cases affecting a category of worker.

This is reinforced by the fact, that in answer to a question as to whether she sought further detail on the outcome, say by means of the internal grievance machinery, she stated that her manager had pursued the matter on her behalf, and on behalf of others affected.

To the extent that this was only seeking an explanation of the grounds for the decision that is fine, but the complainant would have been better advised to act as an individual grievant via the respondent grievance machinery, in respect of which the respondent would have been obliged to act and respond.

While it is regrettable that her manager was not given the courtesy of some explanation, there is a well-established principle that the Adjudication Service will not intervene where workplace machinery has not been fully exhausted, although that is not the only issue in this case.

Because, notwithstanding the fact that the appeal was final, this would not have excluded the complainant seeking feedback on the basis for the rejection of her appeal via the grievance machinery.

There is then the further fact that the complainant entered into an appeal, which she accepted in advance would be final, which she then has chosen to ignore in referring the matter to the WRC.

I am not saying there could never be circumstances in which an appeal, described to be final, might   not still be subject to scrutiny or oversight, but the complainant in this complaint has not made out any case to justify doing so.

That said, I considerate it to be both unsatisfactory from a process point of view, and extremely discourteous from a personal point of view, that the respondent did not consider that one of their employees was entitled to a statement as to why her appeal had not been successful, especially in the specific circumstances of eligibility for this payment.

The respondent noted in its submission that the ‘Dispute Resolution Committee was also of the opinion that the complainant did not meet the criteria as set out in the relevant HR Circular..

 It is regrettable that it did not feel any obligation to explain this, and its reasons for reaching its conclusion to the complainant. It should not have been too demanding to do so.

All it had to do was state which of the criteria the complainant had failed to meet; very often such an explanation will go a long way to satisfying an appellant, and I address this in my recommendation.

This is reinforced by the fact that in this case the complainant made it clear that the financial aspect of the award was not the primary driver in making her complaint to the WRC, and it was more a general sense of grievance about how she was treated, which is understandable.

Certain general procedural obligations fall on any body which is acting as an Appeal Board, and despite a regrettable lack of transparency in how it conducted its affairs (no records were maintained, apparently) no evidence was advanced that the appeal was not properly conducted otherwise.

I must (somewhat reluctantly in the absence of such records) but taking some account of the trade union involvement on the Board which provided a voice for appellants, defer to the decision as having been made in good faith, in the absence of any credible suggestion to the contrary.

Neither party was able to provide detail on the colleagues of the complainant in other regions who were allegedly successful in their application, and I can make no findings on this point.

But there is considerable room for improvement and the respondent should not be complacent about the conduct of similar exercises in the future in the absence of that improvement.

Right to reasons