Worker

Employer

Anonymised Parties

Worker

Employer

Representatives

Mr. Robert McNamara, IFUT

Ms. Laura Kerin, 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 - 00001919

24/10/2023

In 1990 the Worker commenced work as a lecturer for the Employer. The Worker earns approximately €92,700 gross. His contractual hours are 37.5 hours per week. In recent years, the Worker was diagnosed with a neurological disorder which is adversely affected by stress and fatigue. As a result, the Worker sought a reduction in his workload. The Worker outlined inter alia that the Employer “erroneously or duplicitously” placed him on the Sick Pay Scheme; reduced his pay; attempted to amend his contract without his consent; and failed to adhere to its own procedures. The Worker is seeking to have his sick leave restored; his absence record amended; his loss of earnings of €760 recouped; and compensation. The Worker filed his WRC Complaint Form on 24 October 2023.

The Worker provided detailed written and oral submissions.

The Worker outlined that he has worked for the Employer as a lecturer, for over 34 years. He outlined that in recent years, he developed a neurological disorder which is adversely affected by stress and fatigue. The Worker outlined that in terms of workload allocation, the Irish academic model is: 40% teaching; 40% research; and 20% administration. He outlined that he had previously raised concerns about his workload in 2017, 2021 and 2022. The Worker outlined that in early 2022, he engaged with the Head of School (the “HoS”) to reduce his workload and align it with “established school standards” but no action was taken.  The Worker outlined that his health continued to deteriorate.

The Worker then sought a 50% reduction in workload “as distinct from working hours” for the academic year 2022-2023. The Worker outlined that the HR Manager became involved from May 2022 and that she referred him to Occupational Health (“OH”), who provided three reports dated 1 June 2022, 15 August 2022 and 27 October 2022. The Worker outlined that, following discussions with the HoS, the teaching element of his workload was reduced by half, resulting in an overall workload reduction of 20%.

The Worker outlined that on 15 September 2022, he was taken aback when he received an email, requesting him to sign an amended Contract of Employment that reduced his role to 50%. The Worker outlined that he then communicated in a series of emails with HR in which he: stated that he could not accept a reduction in his salary or any impact on his pension; and took issue with his workload. The Worker outlined that HR indicated that to maintain the headcount and safeguard his salary while reducing his workload, the Worker needed to avail of sick leave pursuant to the Employer’s “Managing Attendance and Sick Leave Policy” (the “Sick Leave Policy”). The Worker outlined “[o]n this basis and on several other commitments in this regard, together with the fact that the reduction in teaching did not translate into an actual reduction in working hours, the [Worker] formed the legitimate expectation that he would not suffer any reduction in pay or other benefits.”   

In February 2023, the Worker was informed that his pay would be reduced to 80% until July 2023. The Worker outlined that he was misled in relation to the application of the Sick Leave Policy. The Worker outlined that the sick leave arrangement was only entered into “on the understanding” that there would be no salary reduction.

The Worker outlined that the Employer “provided unhelpful and rigid response, insisting on awaiting an [OH] doctor’s report before considering any accommodations.” The Worker outlined that the Employer “corralled” him down the line of the Sick Leave policy and failed to refer to, or implement, the Reasonable Accommodation policy.

The Worker:

At the Hearing, the Worker took issue with his workload being completed in 40 hours and stated that this was not possible. He outlined that even as a module coordinator, when he is not the “primary lecturer”, he still has a large workload.

The Worker stated that if it had been made clear to him that there would have been a salary reduction, he would not have engaged in the reduction of hours. He outlined that if what he had requested was not possible, he should have been “allowed to back out”.

The IFUT Branch Secretary:

At the Hearing, the IFUT Branch Secretary outlined that the Employer took a “lackadaisical approach” and did not provide sufficient communication or clarification. He also suggested that alternative timetabling could have been of assistance to the Worker.

The Employer provided detailed written and oral submissions.

The Employer outlined that the Head of School (the “HoS”) met with the Worker in May 2022 and agreed that a “light touch workload” would be applied regarding the Worker’s administrative activity, which encompassed reducing his participation to two school committees, one of which never met.

The Employer outlined that on 22 May 2022, the HR Partner met with the Worker and “explained how reasonable accommodations are based upon medical advice and also explained the parameters of the [Employer’s] Sick Leave Policy.” The Employer outlined that it then arranged an OH appointment for the Worker. The resultant OH report dated 1 June 2022, concluded that the Worker “was medically fit to work normal hours but that he should limit his reported overtime”.

In August 2022, the Employer received a further follow up report, which advised, on the basis of the Worker’s most recent “treating Specialist’s report”, that the Worker’s working hours should be reduced by 50% for one year. It was also recommended in the same OH Report, that the Employer’s Income Protection Scheme be discussed with the Worker.

The Employer outlined that on 23 August 2022, the HR Partner met the Worker via a “Zoom” call. It was explained to the Worker that a headcount reduction could be facilitated arising from a reduction of the Worker’s workload by 50%. It was also explained that the Employer’s Sick Leave Policy provided for three months at full pay and three months at half pay which would be applied on a pro rata basis, factoring in a reduced 50% workload. Income protection was also discussed and the Worker was informed that an employee would need to show that they were fully unfit for work to be admitted by the insurer to the income protection scheme.

The Employer outlined that it met with the Worker again on 22 September 2022. The Worker indicated that he required a reduced workload and that he was unwilling to take a salary reduction. The Employer outlined that it explained to the Worker again, the repercussions of a headcount reduction and the parameters of its Sick Leave Policy.

The Employer outlined that following this meeting, the Worker met with the HoS and agreed a reduced 50% workload. The Employer outlined that as no medical certificate was received, the headcount was reduced and the standard letter was issued to the Worker.

The Employer outlined that the Worker then sent an “irate” response “demanding that there be no pay implication arising from the reduction of his workload by 50%”.  The Employer outlined that the Worker then sent further “detailed email objections” stating that “he did not believe that there should be any reduction to his salary and that he was outraged that medical certs should be provided and that the [Employer’s] Sick Leave Policy should apply to his situation.”

The Employer outlined that the HR Partner again emailed the Worker on 29 September 2022, explaining the parameters of the Sick Leave Policy. The Worker refused to provide a medical certificate.

The Employer outlined that in an email dated 30 September 2022, the Worker queried the Sick Leave Policy and again refused to provide a medical certificate. The Employer outlined that the Worker provided a medical certificate in late October/ early November which stated that the Worker “is fit to work only half of his role from 1st September 2022, for at least, 1 year.”

The Employer outlined that the Worker was informed on 8 November 2022 that they would accept his medical certificate, applying the parameters of the Sick Leave Policy. When the Worker was subsequently informed in February 2023, that his pay would be reduced to 80% as per the Sick Leave Policy, the Worker emailed (with his own emphasis included): “Your information about my arrangements is incorrect: I don’t need to claim income protection; you have received certification from me; CIP does not apply; I have no idea why I have been sent to Section 51 from (do you?); the letter at the end is TOTALLY INCORRECT – you may NOT REDUCE MY PAY!”.

The Employer outlined that following the receipt of a GP certificate dated 27 March 2023 and a medical report from the Worker’s medical specialist dated 15 March 2023, confirming that the Worker was medically fit to return to full time work duties, the Worker has been working on a 100% basis, including two days remotely.

The Employer outlined that it did engage in providing reasonable accommodation for the Worker. The Employer outlined that when the Worker disclosed his neurological condition to HR, it engaged OH to provide reports. The Employer outlined that it is bound by the OH Reports and that there is “no negotiation”. The Employer outlined that it had to consider “operationally” how to reduce the Worker’s workload while maintaining his salary, as per his request.

The Employee Relations Manager:

At the Hearing, the Employee Relations Manager explained that there is a process for making a reasonable accommodation request, which is on foot of an OH Report. He outlined that while there can be a variety of reasonable accommodations, there would never be a suggestion that an employee’s hours be reduced while maintaining full pay. He further outlined that the Sick Leave Policy applies to all employees. Finally, he submitted that if the Worker’s requests are acceded to, then the Employer’s Sick Leave Policy will be open to challenge by all of its employees.

The Head of School:

At the Hearing, the HoS outlined that he met with the Worker to discuss the reduction of his workload. He further outlined that the Worker’s administrative allocation was light and that the rest of his work allocation was “standard”.

The HR Partner:

At the Hearing, the HR Partner outlined that the current Reasonable Accommodation policy was first published in May 2022. She outlined that, before that date, the Employer used attendance management, the Sick Leave Policy and headcount reductions.

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

The Worker outlined inter alia that the Employer “erroneously or duplicitously” placed him on the Sick Pay Scheme; reduced his pay; attempted to amend his contract without his consent; and failed to adhere to its own procedures. The Worker is seeking to have his sick leave restored; his absence record amended; his loss of earnings of €760 recouped; and compensation.

On the basis of the information before me and for the reasons set out below, I find that the Worker’s allegations are unfounded and that this dispute has no merit.

The Worker’s Allegations – Sick Leave Policy:

The Worker made it clear to the Employer that due to his medical condition, he required a reduced workload, however, he could not accept a reduction in pay. For example, in his email dated 29 September 2022, the Worker states (with his own emphasis included) “I NEED TO HAVE THAT ACCOMMODATION WITH NO SALARY CONSEQUNCES / REDUCTIONS/ PENSION IMPLICATIONS”. Again at the Hearing, the Worker reiterated that if there was a reduction in his salary, he would not have sought reduced hours.

Since May 2022, the Employer has sought to accede to the Worker’s request, within the boundaries of its policies. The Worker refused a headcount reduction and the resultant pay cut. Consequently, the only remaining option for the Employer to reduce the Worker’s hours while maintaining his pay, was to apply its Sick Leave Policy - once the Worker provided the necessary medical certificate.

It is well documented that the implications and parameters of the Employer’s Sick Leave Policy were clearly and repeatedly explained to the Worker, for example:

On 28 September 2022, the Employer’s HR Partner emailed the Worker:

“In terms of our earlier conversations, you probably recall we discussed [the Employer’s] entitlements to paid sick leave. The pertinent details being, after 1 years’ service, we are all entitled to three months fully paid sick leave and three months half paid sick leave. This would mean that, if you are medically fit to work half of your role for 6 months, once certs are submitted to confirm the same, you would receive fully paid sick leave for 6 months. As you are entitled to three months fully paid on your full 1FTE - at a rate of .5FTE this should last for six months.

Given the above information, is your preference to avail of paid sick leave? If so, you will need to submit a medical certificate confirming the same.”

On 29 September 2022, the Employer’s HR Partner emailed the Worker again and stated:

“to ensure your salary is not impacted while you reduce your headcount, you need to avail of paid sick leave. To do this, you will need to submit a medical certificate from your doctor to inform you are unfit to work full time and can only medically work half of your role. The communication from occupational health is information and does not qualify as a medical certificate for the purposes of this policy. When you submit this cert, you will be placed on sick leave. This leave will be fully paid for a pro rata amount of three months fully paid followed by three month half paid sick leave [sic]. For information purposes, please see here [hyperlink to] the [Sick Leave Policy]”.

In late October / early November 2022, the Worker provided a medical certificate which stated that he was fit to only work half of his role, for at least one year. The Employer placed the Worker on sick leave accordingly. In February 2023, the Worker was informed that he had exhausted his full pay arrangements under the Sick Leave Policy and that half pay arrangements would apply. The Worker took issue with this development, ultimately filing his WRC Complaint Form in October 2023.

On the basis of the two emails dated 28 and 29 September 2022 alone, it is wholly unfounded to suggest that the Employer acted “erroneously or duplicitously” in placing the Worker on the Sick Pay Scheme; reduced his pay; attempted to amend his contract without his consent; and failed to adhere to its own procedures. It was clearly and repeatedly explained to the Worker that taking sick leave was the only way for him to maintain full pay while working reduced hours. The Worker provided a medical certificate in order to invoke the Sick Leave Policy. The details of the same Sick Leave Policy were also clearly and repeatedly explained to him. The Worker knew exactly the parameters of the Sick Leave Policy which encompassed a pay reduction after a certain amount of time on sick leave.

The Worker’s Allegations - Reasonable Accommodation Policy:

The Worker took issue with the Employer’s alleged failure to engage its Reasonable Accommodation policy. Yet, at the same time in his submissions, the Worker states, “[f]rom the outset, the Respondent provided unhelpful and rigid responses, insisting on awaiting an Occupational Health doctor's report before considering any accommodations.”

In any event, I note that that the Employee Relations Manager explained that there is a process for making a reasonable accommodation request, which is on foot of an OH Report. I note that the Employer organised the provision of three OH Reports dated 1 June 2022, 15 August 2022 and 27 October 2022. I also note that the Employer acted in accordance with the same.

Moreover, I note that the Worker was adamant that he wanted a 50% workload reduction while maintaining full pay. However, the Employer explained that there is “nosituation” whereby reasonable accommodation measures could result in a workload reduction without any corresponding pay reduction. In the circumstances, the Employer acceded to the Worker’s request by applying its Sick Leave Policy, the details of which were made fully known to the Worker, as set out above.

The Worker’s Allegations - His Workload:

The Employer outlined that the HoS reduced the Worker’s teaching workload by 50% and that his administrative workload was “significantly below that of the average faculty member” - encompassing participation in two school committees, one of which never met. It is clear on this evidence alone, that the Worker’s workload was reduced significantly. However, the Worker submitted that the reduced workload did not result in a reduction in his hours. It is not clear how this is possible.

Conclusion:

In the circumstances I find that the Employer acted reasonably. The Employer reduced the Worker’s workload as per his request. The Employer used the only policy available to it, its Sick Leave Policy, to accede to the Worker’s request that he work a reduced workload while maintaining his full pay. The parameters of the Sick Leave Policy were clearly and repeatedly explained to the Worker. Finally, the Employer also engaged with OH. The Worker’s allegations that – the Employer acted “erroneously or duplicitously” in placing him on the Sick Pay Scheme; reduced his pay; attempted to amend his contract without his consent; and failed to adhere to its own procedures – are wholly unfounded.

Consequently, I find that the Worker’s dispute is without merit. I recommend that the Worker accepts that he has had a full hearing of the matter.

Key Words: Industrial Relation Act 1969.