LCR22848

Appeal of Adjudication Officer Decision No's: ADJ-00044440 (CA-00055232-001)


BACKGROUND:

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 10 August 2023 in
accordance with Section 13(9) of the Industrial Relations Act, 1969. On 24 July 2023 the Adjudication Officer issued
the following Recommendation:

1. The worker is to be paid the sum of € 127, 120.75 on or before the 1st October 2023.
2. The Respondent is to continue to treat the Worker as complying with the criteria and
footnote set out in circular 073/2020 for as long as she is medically certified as suffering
from post- covid syndrome.
3. The worker is to provide medical certificates to the Respondent monthly.

A Labour Court hearing took place on 25 October 2023.

DECISION:

This matter comes before the Court as an appeal by the employer of a Recommendation of an Adjudication Officer
given under Section 13 of the Industrial Relations Act 1969. The Adjudication Officer recommended that the
employer should make a payment of €127,000 approximately in respect of financial losses incurred as a result of
what the worker contended was an unreasonable application of a circular having application nationally in the HSE
in respect of Special Leave with Pay for workers who have contracted ‘Long Covid’ (Circular 073/2020).

The Court notes that at its hearing it was clarified that the net loss suffered by the worker taking account of other
supports received by her at the material time was in the amount of €70,000 approximately. The Court also notes
that the parties confirmed that they are engaged nationally with respect to the arrangements made available to
workers in the health service who have contracted ‘Long Covid’ including as regards the matters encompassed by
circular 073/2020.

The matter at issue relates to the operation and application of circular 073/2020. That circular excludes from
benefit those workers who have not provided their employer with medical evidence of a positive COVID-19 test
including the date of the test. A footnote to that specific provision recognises that:

‘at the start of the pandemic, universal COVID testing was not available. Thus, on a case-by-case basis, medical
evidence that the clinical presentation indicated a high probability of COVID-19 may suffice.’

The worker before the Court contended that she contracted COVID-19 at the outset of the pandemic in early 2020.
It is not contested that the worker was tested for COVID-19 on 3rd April 2020 and again on 9th April 2020. On both
occasions she tested negative for COVID-19.

The Trade Union contends that she should have been admitted to the scheme even though she had not tested
positive for COVID-19 and relies upon the footnote to Circular 073/2020 to support that contention. The employer
submits that the worker did not meet the requirements of the scheme as a result of the fact that she was tested
twice for COVID-19 and tested negative on both occasions. The employer contends that footnote has no relevance
to the matter because this worker was demonstrably unaffected by a lack of universal availability of COVID-19
testing whereas the footnote sought to deal with a situation where a worker could not be tested because of the
lack of universal availability of such testing at the start of the pandemic.

The Court has concerns at the proposition that it would purport to interpret or otherwise engage with the meaning
of a national circular having application to all health service staff without the benefit of a submission on the matter
being made on a national basis by the Trade Unions representing the workers covered by the circular at issue and
by the employer on a national basis. In that context the Court notes that neither party involved in the appeal before
the Court was able to give the Court an estimate of the number of staff in the employment nationally who might be
affected by the matter at issue before the Court.

Notwithstanding these reservations the Court concludes, on plain reading, that the footnote to the relevant clause
in the circular, would appear to have meaning only to a worker who would seek access to the scheme but who was
prevented from securing the required positive test because of the lack of universal availability of such testing
nationally at the start of the pandemic.

The Court notes that the parties do not dispute that the worker is suffering from ‘Long COVID’. The Court also notes
that the financial challenges which have faced the worker since early 2020 as a result of ‘Long COVID’ are very
significant notwithstanding the various supports which have been provided to her in the employment and
otherwise. It seems to the Court that the submission of the Trade Union that the fact that the entire matter
subsisted as a dispute without definitive resolution from 2020 until a final decision of the employer was made in
February 2023 imposed unnecessary additional difficulty upon the worker.

Having regard to all of these circumstances, the Court does not make any Recommendation purporting to interpret
circular 073/2020 and does not Recommend concession of the claim of the worker. The Court does Recommend
however that the employer should acknowledge that the lengthy period during which this matter has subsisted
without finality has imposed hardship upon the worker and should make a gesture of good will towards her in the
interest of good industrial relations in the form of an ex-gratia payment, without prejudice, in the amount of
€25,000.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
09 November 2023	Chairman