Worker

Employer

Anonymised Parties

A Former Worker

A Health Provider

Representatives

SIPTU

Employee Relations

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 - 00003803

11/02/2025

There is a dispute in relation to the sick pay scheme which the Worker claims should have been applied when she was assaulted in the workplace.

The Worker was employed by the Employer from 1 October 2000 until 1 June 2025. The Worker stated she was subjected to a violent physical assault on the morning of 29 April 2024. The Worker described the assault in detail and stated that it was sudden and violent and that she had not encountered any such previous incident or injury. The Worker called 999, she attended hospital for medical treatment and the matter was referred to An Garda Síochána.

The Worker stated that there were no CCTV cameras or security detail in the location where the assault occurred. The Worker stated that whilst she thought she was assaulted by a patient she could not identify the person as they were wearing “a black face mask”.  The Worker stated that a manager had ticked member of the public as the alleged assailant on one of the forms. The Worker further stated that the Employer did not investigate the assault which she contended was contrary to the provisions of its internal safety management policy.

As a result of the assault the Worker took sick leave and her normal entitlement to sick benefit expired on 22 July 2024. Notwithstanding, the Worker stated that she remained medically unfit to return to work and was placed on Temporary Rehabilitation Remuneration Payment/TRR which was paid at a rate of 37.5% of salary from 23 July 2024.

Prior to the expiry of her normal sick leave, the Worker had applied to avail of the Employer’s Serious Physical Assault Scheme/SPAS which provides for up to six months sick leave on full pay. The Worker outlined the criteria applicable to the SPAS scheme including that the assault must occur during the discharge of duties, that the assault must occur through no fault of the Worker and that it must be attributable solely to the nature of the workers duty. The Worker's application for the SPAS scheme was formally refused on 29 August 2024 on the basis that there was an ongoing Garda investigation which she was advised may provide additional information to support her application. The Worker appealed this decision via the internal Grievance Procedure. On 23 September 2024 the Worker received the written decision that her appeal was unsuccessful primarily on the following basis:

“All employees who are absent from work as a result of a serious physical assault by a patient/client incurred in the course of their duties are covered by the serious physical assault scheme….. however having read [various reports] and your own account of theevents that occurred on the 29th April 2024, there has been no patient identified as the suspect to date, therefore unfortunately I cannot uphold your grievance at this time”.

The appeal outcome of 23 September 2024 did however recommend the installation of CCTV at entrances to the premises. Security measures were subsequently implemented by the Employer.

It is the position of the Worker that no obligation rests or should rest upon her/ie the victim of the assault to identify their assailant for the purposes of availing of the SPAS scheme. In that regard the Worker stated that it was not possible for her to do so given the circumstances of the assault, given that the assailant was wearing a black face mask and given the lack of CCTV. The Worker contended that the Employer’s refusal of the SPAS scheme was unreasonable and unfair as she met the scheme’s criteria. The Worker stated that as a result she has suffered significant financial loss and is seeking compensation and restoration of sick leave. The Worker also stated she was significantly impacted by the assault and its outcome and as a result did not return to work after 29 April 2024 and resigned from her employment effective from 1 June 2025.

The Employer outlined what occurred on 29 April 2024 and set out its response to the assault including the attendance of two of its nursing management team at the scene, the attendance of the Gardaí on the day and the transfer of the Worker by ambulance to the local hospital. The Employer stated the Worker was released later on that day. The Employer stated that it’s Employee Assistance Scheme (EAS) and Occupational Health Services were made available to the Worker.

The Employer stated the Worker was absent from work on sick leave from 29/4/2024 – 22/7/2024 during which time she was in receipt of the normal workplace sick benefit scheme and that after that and up until 1/6/2025 the Worker was in receipt of TRR.

The Employer stated that in response to the SPAS application, its Business Manager met with the Worker on 15/8/2024 in order to progress the matter and discuss options for returning to work. Thereafter the Employer stated that the Worker’s application proceeded through the required channels. The Employer stated that initially it was awaiting the outcome of the Garda investigation to establish the identity of the alleged attacker as from its perspective, there was a lack of evidence “relating to the identity of the alleged attacker in support of [the Worker’s] claim”. In this regard, the Employer stated that a patient or client had not been identified as the alleged attacker, that this was a specific and essential requirement of the SPAS scheme and that it was not sufficient to describe the alleged perpetrator as a member of the public.

The Employer stated that despite a widespread search the Gardaí did not identify nor apprehend the alleged attacker and that the Gardaí have since confirmed they were no longer investigating the incident. The Employer stated it took the decision not to progress the Worker’s SPAS application “owing to the fact that no patient/client had been identified as the alleged perpetrator locally or by the Garda Investigation and nor were any there any witnesses to the event who could identify the alleged attacker”.

In the course of the adjudication hearing the Employer confirmed that it did not dispute the assault took place during the course of the Worker’s work duties. The Employer also stated at the adjudication hearing that it could not say whether or not the assailant was/was not a patient/client – it was 50/50.

The Employer stated that the provisions of the SPAS scheme are set out in a national Circular and in its Long Term Absence Guidelines and were the result of national negotiations between its management and the relevant trade unions. Consequently, the Employer stated that it must adhere to the stipulated criteria for granting SPAS as otherwise it would constitute a departure from and/or alteration of the nationally agreed scheme. Having regard to the terms of the scheme, it is the position of the Employer that the Worker’s application did not meet the SPAS criteria and that had a patient/client been identified as the alleged attacker her application would have been revisited. The Employer stated that “The decision was reached on the sole basis no patient/client could be identified as the alleged attacker and recommendations were made to enhance security measures….”.  

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties and the following are my conclusions:

1.      I am satisfied as a result of hearing from the parties there is no dispute the Worker was assaulted in her workplace on the morning of 29/4/2024 and I accept the Worker’s position that this was a sudden, unwanted, physically violent and distressing incident;

2.      Following my consideration of the procedures and Circular governing the Employer’s sick leave provisions, I am satisfied The Employer’s Long Term Guidelines provide that the SPAS scheme is intended for employees absent from work “as a result of a serious physical assault by a patient/client…”. However, the specific paragraph where this is set out, goes on to stipulate that “Payment is conditional….”  on the Worker meeting three criteria – namely that the assault occurred during the discharge of the Worker’s duties, that it arose through no fault of the Worker and was attributable to the nature of her duty – all of which three criteria I am satisfied the Worker met;

3.      The Employer was clear that its decision was reached on the “sole basis” that no patient/client could be identified as the alleged attacker. At the same time, the Employer accepted on a 50/50 basis that it could not dispute or rule out that this is what occurred;

4.      The Worker stated it was not possible for her to identify her attacker, that the assailant wore a mask, there was no CCTV and that neither the Employer or Gardaí established the assailant’s  identity. Indeed the Employer made no attempt to do so in terms of establishing any internal investigation;

5.       In light of the foregoing I am of the view that the SPAS scheme is intended for those employees who have been assaulted by a patient/client. In this regard I specifically note that the Circular and Long Term Absence Guidelines are silent on how such patient/client is to be identified and as regards whose responsibility it is to make such an identification. It appears to me that if the SPAS scheme was intended to hang solely on the identification requirement then surely clarity would have been set down as to how such identification was to occur, by what process and whose responsibility it was to make such a decision.   In these circumstances and given that it was not possible and/or that no assailant was identified in this instance, I consider it was unreasonable to deny the Worker in this case the benefit of the SPAS scheme – particularly when she met the three payment criteria.

CA-00069223-001: Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. In light of my conclusions I make the following recommendations:

1.      That the Employer recalculate the Worker’s paid absence from work from the date of the assault – ie 29/4/2024 until her resignation on 1/6/2025 – in order to retrospectively grant the Worker the six months fully paid leave provided by the SPAS scheme in accordance with the usual manner in which this scheme is administered. This will also necessitate a recalculation of the Worker’s TRR payments.

2.      That the monies owing to the now former Worker are paid to her in a timely manner and at the latest within three months of the date of this Recommendation.

3.      That Recommendations 1 and 2 are being made my me on a strictly “Red Circled” basis – solely specific and confined to the Worker in this dispute.

4.      That in addition, the Worker be compensated €2000 for the distress caused as a result of the denial to her of the SPAS scheme whilst she was still employed.

5.      I recommend that the Employer and the relevant Trade Union/s enter into further discussions in order to address and clarify the matters raised by this dispute – particularly as regards the application of the SPAS scheme.

CA-00069223-002– Withdrawn.

Assault Sick Leave; Red Circle