IR - SC - 00001728

ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00001728

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Date of Hearing:  06/12/2023

Procedure:

This dispute was referred to the Workplace Relations Commission (hereinafter ‘WRC’) pursuant to Section 13 of the Industrial Relations Act 1969 on 29th August 2023.  There was no objection to the WRC investigating this dispute or as to jurisdiction.  The Parties were self-represented.  Following delegation to me by the Director, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  Comprehensive written submissions along with supporting documentation was received from both Parties.  This dispute was heard by remote hearing on 6th December 2023.  A Public Representative was in attendance to assist the Worker and two HR Senior Managers were in attendance on behalf of the Employer.  I indicated that I was only dealing with the facts pertaining to this particular case.  The hearing was held in private in accordance with Section 13(8) of the Industrial Relations Act 1969.  I direct that any information that might identify the Worker within this recommendation should not be published.  Given the specific nature of this dispute, it has not been possible to anonymise the Employer.

Background:

The Worker is an Executive Registrar with the Civil Registration Service and is employed by the HSE.  She had applied for and been deemed ineligible for the Pandemic Special Recognition Payment, being a once-off ex-gratia Government Payment awarded to eligible HSE and Section 38 employees in recognition of their work during the Covid-19 Pandemic.  She contended that she had been unfairly declined the Payment and sought payment of same whilst the Employer contended that she had properly been deemed ineligible.

Summary of Workers Case:

On 19th January 2022, the Government directed the Department of Health to make a once-off tax-free Pandemic Special Recognition Payment of €1000 (pro-rata for part-time employees) to eligible employees of the HSE and Section 38 employees who had worked a minimum period of 4 weeks between 1st March 2020 and 30th June 2021.  This was in recognition of the additional risks they had faced in the performance of their normal duties during the Covid-19 Pandemic.  To implement this decision, HR Circular 012/2022 dated 19th April 2022 was circulated to Department Managers.  Under the heading ‘General Features of the Recognition Payment’, it stated: “The ‘Pandemic Special Recognition Payment’ full value is worth €1,000, free of all taxes.  Eligible employees must have been employed between 1st of March 2020 and 30th of June 2021 and have been identified as working in COVID-19 exposed healthcare environments.”  It stipulated that ordinarily, eligible employees will have their payment processed automatically via their local HR and: “Employers are requested to give immediate effect to this Circular and to implement payment as soon as possible through their relevant HR and Payroll systems.”  It included the following guidance documentation:

• Frequently Asked Questions – Pandemic Special Recognition Payment – HSE & Section 38
• Updated Sequencing of Covid-19 vaccination of Frontline Health Care Workers, Version 1.1 - 19th of January 2021
• CCO Risk Assessment document
• Declaration Form (certain groups – see FAQ)

The ‘Frequently Asked Questions’ document outlined the eligibility criteria for the Pandemic Special Recognition Payment as follows: “Employees who, between 1st of March 2020 and 30th of June 2021, worked in an environment which warranted their inclusion in Sequence Group 1 and 2 for the Vaccination programme (see attachment).  This only applies to those directly employed by the HSE or Section 38 Agencies and those eligible in Vaccination and Testing Centres. (For other healthcare workers covered by the Government Decision (Appendix 1), please see FAQ ‘I am a non HSE / Section 38 employee’)  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.  Subject to eligibility mentioned above, general examples of healthcare workers that will benefit from this measure include: · Health Care Assistants · Support Staff employed by HSE/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 · Health Care Support Assistants (also known as home help / home care / home support)  This list is not exhaustive.”  This document also set out the additional risks faced by employees working within an environment warranting their inclusion within Sequence Groups 1 and 2, answered other questions confirming the pro-rata arrangements and stipulated the requirement to have worked a minimum of 4 weeks within the requisite period.  It further outlined the application and appeals processes with the outcome of any appeal being full and final.

The ‘Updated Sequencing of Covid-19 vaccination of Frontline Health Care Workers, Version 1.1 - 19th of January 2021’ document (one of a number of updates) provided a detailed explanation of the sequencing of Government allocation groups of frontline healthcare workers determining their prioritisation for the Covid-19 Vaccination Programme.  Sequence Group 1 included: “Healthcare workers whose work involves direct physical contact with people who use healthcare services (frontline healthcare workers).”  This document further broke down Group 1 into eight sub-groups including “sequence group 1h – all other priority 1 healthcare workers”.  Sequence Group 2 included: “Healthcare workers that 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.”  This document further noted: “The sequencing makes no distinction between healthcare workers based in the community and those in the acute hospital system.” 

The Worker is an Executive Registrar with the Civil Registration Service for a geographical area and as an employee of the HSE, is regarded as a healthcare worker.  Her role entails oversight of the registration of births, deaths and marriages and the conduct of civil marriage ceremonies.  The Civil Registration Service was deemed to be a priority 1, face-to- face, frontline, demand-led service throughout the Covid-19 Pandemic, requiring staff to work onsite initially without PPE or vaccination and warranting inclusion within Sequence Group 1h.  Specifically, and in the execution of her public duty, the Worker was required to remain in her Office and have face-to-face contact with the public throughout the Pandemic including the requisite period between 1st March 2020 and 30th June 2021 and was vaccinated within Sequence Group 1h.  Whilst the Emergency Measures in the Public Interest (Covid-19) Act 2020 enacted on 27th March 2020 enabled the public to register births and deaths without the requirement to attend in person at the Office, she had to provide face-to-face registration services until that date and all other face-to-face services continued throughout the Pandemic.  There continued to be a large number of people requiring face-to-face contact arising from the increase in deaths and deferred marriages.  She was also required to conduct marriage ceremonies in person both in the Registrar’s Office and in hotels during the requisite period.  Weddings carried a significant risk of transmission of Covid-19 and depending upon Government restrictions, the number of persons permitted varied between 4 and 100.  She had been particularly concerned about passing on Covid-19 to her elderly mother.  Accordingly, the Worker and the other staff had been delighted to learn of the Pandemic Special Recognition Payment in recognition of their hard work.

On 23rd May 2022, the Worker’s Superintendent Registrar (Head of Department) completed the required template and deemed 13 staff including the Worker to be eligible for the Payment, having applied the criteria set out in the documentation outlined above and an acknowledgement of receipt was received.

On 26th July 2022, an email from the Office of the General Manager advised that this application had been rejected without providing any reasons or stipulating the right of appeal or the appeals process.  On the same date, the Worker’s Superintendent Registrar sought information on the right of appeal and pointed out that Civil Registration Office staff in another geographical area working in the same circumstances had already received the Payment.  On 2nd August 2022, the Superintendent Registrar lodged a generic appeal on behalf of all the 13 staff including the Worker on the basis that (1) no reasons were provided for the refusal of the Payment; (2) the staff met all the eligibility criteria including operating face-to-face services to the public during the requisite period warranting their inclusion within Sequence Group 1h and (3) Civil Registration staff in other geographical areas on the same grades undertaking the same work during the requisite period had received the Payment.  On 16th August 2022, the Worker lodged an individual appeal. 

An email dated 15th August 2022 from the Office of the General Manager requested evidence that the 13 staff had worked during the requisite period when this had already been provided.  A further email dated 29th August 2022 from the Office requested this email to be disregarded as being sent in error, also stating: “You were notified on 26.07.2022 that this group of staff were not entitled to the Pandemic Payment… as they did not meet the criteria that they had worked 4 weeks in the specified period i.e. 1st March 2020 to 30th June 2021 when they faced additional risks in the performance of their normal duties.  They may of course appeal the decision of the GM’s and I attach the Circular and Appeal Form for their information.” 

Following reminder emails, on 13th February 2023, the Dispute Resolution Committee emailed the Worker’s Superintendent Registrar confirming that the appeals on behalf of all 13 staff were not being upheld.  This came as a ‘slap in the face’ and had been highly emotive particularly as their counterparts in other geographical areas working in identical circumstances had received the Payment.  They felt rejected and undervalued.  On the same date, the Superintendent Registrar had replied querying the decision, requesting reasons and urging review in the interests of due process and natural justice.  The Dispute Resolution Committee replied: “A decision was made based on the grounds stated in the form and apply to that named person only.  The Committee examined the grounds stated on each individual form and decided whether or not they satisfied the criteria contained in Circular 12/2022.  No further details on the Committee’s decision making process is recorded.  Forms were completed by each individual and may have varied in the information provided.  The Committee’s decision has no bearing on any other member of staff and is a final decision from which no further appeal is possible.”  The Parties reiterated their respective positions on 3rd March 2023 with the Dispute Resolution Committee restating: “The Committee examined the grounds stated in your appeal form and was of the view that they did not meet the specific criteria as set out in HSE HR Circular 12/2022.  As per the agreement between the HSE and the relevant Health Sector Trade Unions at national level, the outcome of the appeals process is final and binding.  Therefore, the Committee had no further comment to make in respect of your appeal.”  A final exchange on 15th June 2023 confirmed that the Dispute Resolution Committee would not be changing its decision and was dissolved.

In support of this dispute, reliance was placed upon the WRC Decision in ADJ-00044397, also involving the non-payment of the Pandemic Special Recognition Payment but referred under the Employment Equality Act 1998.  In that case, the Complainant submitted that she had been discriminated against by her employer, the HSE, on the ground of age as she was ten years younger than all her colleagues within her Department on the same grade and working in the same circumstances within the requisite period and had been the only person within her Department not to receive the Payment.  It was further submitted that the appeal outcome upholding the original decision did not provide any reasons as to why her Payment had been refused.  In the absence of any evidence on behalf of the Respondent contradicting the Complainant’s position, her complaint was upheld with €1000 in compensation equating to the Payment awarded.

In summary and having exhausted the process and relying upon the same grounds as her appeal, the Worker seeks a recommendation that the Pandemic Special Recognition Payment be made to her by her Employer forthwith.  She contends that it is regrettable that she has had to refer this matter as a dispute to the WRC but in the interests of natural justice and fairness, it is only right that she is awarded the Payment.

Summary of Employer’s Case:

In written submissions on behalf of the Employer, it was confirmed that the Worker was in continuous employment during the Covid-19 Pandemic and requisite period for the purposes of the Pandemic Special Recognition Payment.  The Covid-19 Pandemic was an extremely difficult time for the Employer and delivery of services to the public at a time of huge uncertainty.  This period also witnessed many changes to the delivery of services and manner in which employees undertook their daily duties, as guided by the Chief Medical Officer and the Department of Health.  Priority was given to direct care patient services, whilst other services were closed and staff were redeployed to priority areas.  Protective measures were taken and employees were provided with location appropriate guidelines and PPE to protect their health and welfare whilst undertaking their duties.  Members of the public were directed to remain at home if they were symptomatic or tested positive with Covid-19.  The Emergency Measures in the Public Interest (Covid-19) Act 2020 also resulted in a reduction in members of the public attending at Civil Registration Offices.

To guide Department Managers during this challenging time, the HSE National HR regularly communicated updates, guidelines, statistics and policy changes including HR Circular 012/2023 and accompanying documentation on the Pandemic Special Recognition Payment as outlined above.  The ‘Frequently Asked Questions’ document provided that eligible employees were those who, between 1st of March 2020 and 30th of June 2021, “…worked in an environment which warranted their inclusion in Sequence Group 1 and 2 for the Vaccination programme.”  In relation to sequencing, it further stated: “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.”  Further reliance was placed upon the Government decision to direct the Pandemic Special Recognition Payment stipulating: “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…”  In this respect, it was contended that the Civil Registration Office staff including the Worker within the geographical area subject to this dispute did not meet the criteria for Sequence Groups 1 and 2 which are identified as Covid-19 exposed healthcare environments.  They may have worked four weeks within the requisite period but HR Management “in considering this matter did not deem Civil Registration services a Covid exposed environment or a clinical setting.”

It was further submitted that all appeals in relation to the non-payment of the Pandemic Special Recognition Payment were referred to the Dispute Resolution Committee set up nationally under terms of reference agreed between the HSE and Trade Unions.  The process was outlined in NER Memo 03/2022 also providing: “All decisions of the Dispute Resolution Committee will be binding and no further appeal is allowable.”  The Worker’s appeal in this respect was not upheld by the Dispute Resolution Committee.

Overall, it was submitted that in considering the Worker’s application for the Pandemic Special Recognition Payment, HR Management had properly followed the guidance documentation and Government decision.  In considering the Worker’s application for the Payment, HR Management were of the opinion that the Worker did not meet the requisite criteria as independently upheld by the Dispute Resolution Committee.

At the hearing, the HR Senior Managers (Area Manager and General Manager) on behalf of the Employer acknowledged that the Worker had been properly included within Sequence Group 1h of the Covid-19 Vaccination Programme.  They were responsible for making decisions on eligibility for the Pandemic Special Recognition Payment for the geographical area within which the 13 Civil Registration staff including the Worker were declined the Payment and could not speak to the decisions made by the HR Management for the other geographical areas where the Payment had been granted.  In the instant case, a view had been taken that because of the controls in place, the Civil Registration Office was not considered to be a Covid-19 exposed healthcare or clinical setting based upon their interpretation of the Government decision and guidance documentation.  It was acknowledged that groups of deserving employees had been deemed ineligible and this was no reflection on the value of their work during the Pandemic.  It was also accepted that administration staff within the HSE and Civil Registration Office staff in other geographical areas undertaking the same functions as the Worker had received the Payment and could not be distinguished.

Conclusions:

The Pandemic Special Recognition Payment was a one-off ex-gratia payment directed by the Government in recognition of the contribution made by employees working in Covid-19 exposed environments between 1st March 2020 and 30th June 2021.  Whilst this was not enshrined in law, it was underpinned by a Government issued HR Circular 012/2022 dated 19th April 2022 and as such, the principles of natural and constitutional justice apply to the administration of this Payment.  Noting that this is a dispute requiring resolution and not a legal decision, the following observations are made in relation to the instant case:

It is acknowledged that drawing the line between those eligible and those ineligible for the Pandemic Special Recognition Payment was a difficult task for the Government.  Inevitably, and as has been the case as a matter of public record, there would be grey areas and unintended omissions and inclusions.  This has resulted in groups initially excluded subsequently being included with other groups omitted altogether.

The interpretation of the guidance documentation (including variance in wording) by different HR Managers with oversight for different areas may also have been challenging and given rise to inconsistent application.  The Government decision stated: “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.”  Under the heading ‘General Features of the Recognition Payment’, HR Circular 012/2022 stated: “Eligible employees must have been employed between 1st March 2020 and 30th of June 2021 and have been identified as working in COVID-19 exposed healthcare environments.”  The eligibility criteria contained in the ‘Frequently Asked Questions’ document provides: “Employees who, between 1st of March 2020 and 30th of June 2021, worked in an environment which warranted their inclusion in Sequence Group 1 and 2 for the Vaccination programme...”  It further provided that the list of potentially eligible employees was non-exhaustive and none of the documentation expressly excludes any otherwise qualifying employees.  In the instant case, it is not in issue that the Worker had been properly included within Sequence Group 1 of the Vaccination Programme and hence it follows that she was deemed to have worked in an environment warranting such inclusion.  However, the differing wording within the documentation appears to have caused the decision-makers herein to have embarked upon their own assessment of whether the Worker had worked within “a Covid-19 exposed healthcare environment” as opposed to properly relying upon the fact that her work had warranted inclusion within Sequence Group 1. 

It is also undisputed that Civil Registration Office staff in other geographical areas on the same grades undertaking the same work during the requisite period have received the Pandemic Special Recognition Payment.  As a matter of natural and constitutional justice and public accountability, one would expect all employees falling within a particular grouping such as Civil Registration Office staff to be treated uniformly.

It is further acknowledged that the provision of reasons for a refusal to grant the Pandemic Special Recognition Payment may not have been practically possible given the additional administrative burden of processing the Payment.  However, there is a general obligation upon administrative bodies to provide reasons for their decisions to assist the individual or body subject to the decision in understanding the basis for the decision and to enable an appeal body to scrutinise the first instance decision in discharge of its functions.  In this case, no reasoning for refusal had been provided to the Worker until referral to the WRC.

Recommendation pertaining to this Dispute:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute.  In all the circumstances and as a way forward to resolution, I recommend an ex-gratia payment of €1000 (after any deductions) by the Employer to the Worker within a period of 42 days herewith.

Dated:   16th May 2024.

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Dispute – Section 13 Industrial Relations Act 1969 – Pandemic Special Recognition Payment