Complainant

Respondent

Parties

Gabrielle  Mitchell

Health Service Executive

Representatives

Ms. Eithne O’Reid Doherty B.L.

Mr. Bob McArdle, Patrick J. Durcan & Co Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062552-001

02/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00062552-003

02/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015

CA-00062552-004

02/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00062552-005

02/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Part 14, Section 103(55M) of the Health Act, 2007

CA-00062552-006

02/04/2024

On the complaint form, the Complainant stated that she commenced employment on 2nd September 2019. At all relevant times the Complainant’s role was described as that of “Business Manager”. The Complainant remains a permanent, full-time member of staff.  

On 2nd April 2024, the Complainant referred the present set complaints to the Commission. Herein, she alleged that the Respondent penalised her under three separate legislative provisions following the referral of a substantial complaint of wrongdoing on the part of the Respondent. In addition to the foregoing, the Complainant submitted that the Respondent failed to issue her with an amended contract of employment and failed to permit her to avail of her full annual leave entitlement. By response, the Respondent denied that the Complainant had suffered any form of detriment that might give rise to a finding of penalisation for the purposes of the impleaded legislation. While they submitted that the Complainant was not entitled to an amended contract of employment and that any accrued annual leave had been assigned to the Complainant, they further submitted that these complaints were out of time for the purposes of the present complaint.

A hearing in relation to this matter was initially convened for 29th November 2024. Given the extensive volume of documentation submitted by the parties, the hearing was adjourned to a two-day session to consider the relevant evidence in relation to the complaint, with the same being listed for 28th & 29th April 2025. Unfortunately, the matter was not finalised in that session and was again adjourned, primarily for the purpose of allowing the Respondent to present evidence in defence of the complaints. Thereafter, the matter finalised on 1st December 2025.  All hearings were held on a face-to-face basis at the Commissioner’s Sligo offices.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaint, while a member of the Human Resources department of the Respondent gave evidence in defence. All evidence was given under oath or examination and was opened to extensive cross examination by the opposing side.

At the outset of the second day of hearing, the parties fell into dispute regarding the admissibility or otherwise of a covert recording submitted by the Complainant. While the parties remained in dispute in relation to the same, the content of this recording had no evidentiary value in relation to the decision below and this matter does not require resolution.

As set out above, the Respondent raised preliminary issues as regards the complaints under the Organisation of Working Time Act and the Terms of Employment (Information) Act. Given the nature of the same, these will be discussed individually following a consideration of the substantive matter. At the outset of the hearing, the Complainant confirmed that she did not intend to pursue the complaint under the Industrial Relations Amendment Act.

In evidence, the Complainant stated that she suffered a wide range of adverse behaviour following the referral of a significant complaint against the Respondent. The Complainant stated that this complaint, submitted on 11th January 2022, alleged bullying by the Respondent as a corporate entity, perpetrated by various individuals within the organisation. She submitted that this referral constituted a protected disclosures under the Safety, Health and Welfare Act 2005 and the Health Act 2007.

In evidence, the Complainant stated that she suffered extensive and ongoing adverse treatment following the referral of this complaint. The Complainant stated that she suffered significant emotional harm and was removed from her duties as a consequence of making these protected disclosures. In particular, the Complainant stated that she was demoted from her position as a business manager at grade 7, and that her duties and locations were altered. She stated that she did not receive remuneration consistent with a grade 7 post and that the Respondent sought to unilaterally alter the core terms of her employment, including her place of work and sought to demote her from the position she held prior to the referral of the complaint.

In presenting her claim, the Complainant referred to various occupational health referrals made by the human resources department of Respondent over a period of time. In this regard, the initial occupational health referral dated 25th November 2019, completed by her then manager, named the Complainant as a “business manager” with no grade attributed. Thereafter, the Complainant issued her protected disclosures on 11th January 2022, and a subsequent occupational health referral occurred. On that occasion, the manager in question did not specify any role for the Complainant, leaving that section blank. Following same, in July 2022, the Head of Human Resources nominated herself as the Complainant's manager for these purposes. In an occupational health referral dated 21st July 2022, she expressly named the Complainant as being within an “administrative grade at senior staff officer level”. Again, on 15th August 2022, the Head of Human Resources designated the Complainant as an administrative grade at senior staff officer level. For a further referral on 11th October 2023, the relevant section stated that the Complainant was to be assigned alternative work duties and was to be located at an alternative centre, in accordance with a previous report.

In this regard, the Complainant stated that the content of these referral forms demonstrated a concerted effort on the part of the Respondent to orchestrate a situation whereby the Complainant would be demoted from her duties and assigned alternative duties outside of her job specification and below her grade. She maintained that her correct role was that of a business manager, and as such, the act of describing her as being of an “administrative grade” only served to demote her from her duties. The Complainant stated that the Respondent, and in particular the Head of Human Resources for the region, sought to direct the occupational health therapist to recommend that the Complainant be provided with duties below her pay grade. The Complainant also referenced two emails between the manager of the service and the occupational health specialist, dated 29th and 30th August 2022. The Complainant stated that these emails expressly sought to change her duties and locations, which she submitted evidenced an intention on the part of the Respondent to demote her from her duties as a consequence of raising protected disclosures. She further submitted that that it was highly inappropriate for the Respondent and the Occupational Health Specialist to correspond in this manner.

The Complainant stated that these actions and the subsequent demotions were further evidenced by a telephone call on 25th September 2023, with a HR manager from another area of the Respondent organisation. During this telephone call, the HR manager sought to reassign the Complainant to an alternative location and stated that the manager had “countless little projects” ongoing. In evidence, the Complainant stated that she was engaged in the role of business manager, and that an proposed assignment to a minor project in an alternative location represented a significant demotion and a diminution of status.

The Complainant stated that, as a consequence of raising the protected disclosures, she was demoted from a grade 7 business manager post to an unspecified post outlining clerical and administrative duties only. She stated that the Respondent deliberately sought to demote her as a consequence of raising these protected disclosures and that she was penalised on foot of the same within the meaning of the impleaded legislation.

In addition to the aforementioned issues, the Complainant stated that the Respondent was in breach of the Terms of Employment (Information) Act, as the Respondent failed to provide her with an unequivocal contract and job specification for the grade 7 business manager post.

The Complainant further stated that she had accrued significant amount of accrued annual leave. In this regard, she stated that the Respondent failed to calculate her time off in lieu (TOIL) to 25th February 2021, as requested in January 2022. The Complainant further stated that she worked two bank holidays in 2020 and received no additional payment in respect of the same. She stated that in the year 2020 to 2021, annual leave consisting of 18 days was carried forward by a Human Resources administrator of the Respondent, leaving her with a balance of 16 days owing. She stated that she commenced a period of sick leave, during which she accrued a further 25 days of annual leave, and thereafter she was placed on administrative leave from 1st September 2022 until the date of referral of the present complaint, creating a total of 57 days of outstanding leave. In calculating these outstanding days, the Complainant stated that she was owed a total of 102 additional days of annual leave from the Respondent.

The Complainant sought to address this with the Respondent in correspondence, during which the Respondent accepted that the Complainant was owed a total of 32 days of annual leave. The Respondent stated that the carryover from 2020 to 2021 was lost because it was not used within 15 months. It was further stated that the allowance for the following year was lost as it was not used within 15 months, and additionally, the allowance for the period from 2022 to 2023 was lost for the same reason. The Complainant stated that she was unable to take this leave because she was on administrative leave or sick leave for almost the entirety of this period. In this regard, she relied on Article 7 of the Directive 2003 88 and various European case law which demonstrated that the Respondent had an obligation to remind the Complainant of her entitlement to avail of annual leave prior to the expiration of the same.

Having regard to the accumulation of the foregoing points, the Complainant submitted that the Respondent was in breach of each of the legislative provisions impleaded, and submitted that each of her complaints should be deemed to be well-founded.

From the outset, the Respondent strongly denied the complaints raised by the Complainant regarding the allegations of penalisation. In this regard, the Respondent noted that the Complainant initially alleged she was demoted from grade seven to grade six. In response to this allegation, the Respondent submitted that the Complaint had never, as a matter of fact, been designated as a grade six employee. In addition to the same, they noted that the alleged grade seven post was assigned in January 2020, approximately two years prior to the alleged protected disclosures advanced by the Complainant. As such, it was submitted that the purported demotion from grade seven to grade six could not have been a consequence of the protected act.

It was further denied in strong terms that the Head of Human Resources sought to demote the Complainant through her descriptions of the Complainant’s role in the occupational health forms. In this regard, the Respondent referenced correspondence of 27th September 2023 from the Head of Human Resources, stating that the Complainant was deemed medically unfit to attend work and carry out all duties. This correspondence went on to state that should this not be the case, the author would immediately arrange an occupational health referral to assess her fitness to return to work. By way of response of 2nd October 2023, the Complainant stated that she believed the idea of having a referral to occupational health was excellent and the correct route to follow, considering there had been over a twelve-month lapse since her last appointment. In this regard, the Respondent submitted that this statement could only be categorised as a request by the Complainant to set in train the process of an occupational health referral in question.

This occupational health referral then became the subject of ongoing correspondence between the Complainant's then legal representatives and the Head of Human Resources. On 10th January 2024, the Complainant's legal representative requested that the Head of Human Resources confirm, in writing, the details of the Complainant's proposed return base, a job description for a grade six business management role, alongside the Respondent's acceptance of the Complainant's certification of fitness to return to work. In this regard, it is noted that the reference in this correspondence was to grade six position, and that the same is silent as to any purported grade seven assignment. By subsequent correspondence, the Respondent set out details of the Complainant's proposed return to work. At no time in the course of this correspondence was it ever suggested that the Complainant was not a grade six employee, and the first draft of the occupational health referral form clearly displayed the post as being grade six. In addition to the foregoing, the Respondent submitted that the Complainant's own submissions described her as a grade six business manager throughout.

Regarding the various occupational health forms opened by the Complainant, the Respondent submitted that these all demonstrated her operating as a grade six employee. The Respondent observed that the majority of these were signed by the Complainant. In this regard, the Respondent accepted over the course of these various referral forms, the Complainant was referenced by job description and a grade, or by grade only on occasion. The Respondent submitted that these referral forms were not documents capable of promoting or demoting the Complainant in any conceivable manner, as that the same simply sought to provide a brief description of the Complainant’s position. They submitted that an occupational health referral was a confidential document intended solely for the review of occupational health section of the Respondent for the purposes of assessing the occupational health of the person concerned. In this respect, they submitted that the same merely represent a simple administrative description, and that the Complainant’s position regarding any purported demotion on the foot of the same, was incorrect in fact and wholly misconceived.

The Respondent submitted that no request was made by the Complainant during her time for an upgrade or regrading of her post. They stated that any employee seeking an upgrade from grade six to grade seven based on duties was required to engage in a prescribed process, as provided for in the relevant job evaluation circular. Having regard to the foregoing, the Respondent submitted that the Complainant was not in any way demoted in the course of her duties, and that she remained at all times a grade six business manager. They submitted that any purported ambiguity in the description was purely clerical in nature and in no way evidenced an intention by the Respondent to demote the Complainant. In these circumstances, they submitted that the Complainant suffered no detriment as a consequence of the protected acts, and as such, her complaints should fail.

Regarding the complaint under employment information legislation, the Respondent submitted that the Complainant was never assigned to a grade seven post and consequently had no entitlement to receive an amended contract setting out grade seven duties and rates of pay.

Regarding the complaints under the Organisation of Working Time Act, the Respondent observed that this legislation had no application to time off in lieu or any leave entitlements in excess of statutory entitlements. They further submitted that the references to public holidays were expressly out of time, having occurred a number of years prior to the referral of the complaint. The Respondent further submitted that any infringement of an annual leave entitlement crystallised at the end of the leave year, being 1st April, and that the six-month time period ran from that date. In this regard, they argued that the Complainant was expressly out of time in relation to the majority of her complaints.

The Respondent further submitted that the European case law referenced by the Complainant did not apply, as she was aware and on notice that any annual leave would be managed in accordance with established procedures. They submitted that this process was expressly provided for in the Respondent's procedures. In addition to the foregoing, they submitted that the Complainant engaged in communication with management on the subject of carryover leave in December 2019. They further submitted that the Complainant was the official that circulated the specific circular setting out the fact that annual leave could only be carried over in exceptional circumstances. referencing an email from the Complainant, sent in the course of her duties on 27th January 2020. They further submitted that the Complainant had previously signed an internal application form dated 30th May 2021, seeking permission to carry over annual leave in accordance with this procedure.

In this regard, the Respondent submitted that the present complaint was out of time for all periods other than the leave year commencing 1st April 2024. The Respondent submitted that they allowed the Complainant to carry forward her annual leave for the leave year commencing 1st February 2023 and that on the date of the various hearings, this had been assigned to her and she was free of avail of the same. They submitted that at no stage was the Complainant denied annual leave, nor was she prevented from availing of the same. In this regard, the Respondent submitted that the Complainant returned to work on 28th August 2024 and that her carried over annual leave was assigned to that date. Having regard to the foregoing, the Respondent submitted that no breach of the Organisation of Working Time Act occurred in the present case.

Regarding the complaint under the Terms of Employment (Information) Act, the Respondent submitted that in circumstances whereby the Complainant’s grade of employment had not been amended, they were under no obligation to issue and amendment contract. As a consequence of the same, they submitted that no breach of the Act occurred. In addition to the same, they submitted that the complaint, as formulated was statute barred for the purposes of the impleaded Act.

Regarding the present case, the Complainant alleged that she suffered a series of adverse behaviours on the part of the Respondent following the referral of a series of complaints. In this regard, the Complainant submitted that she issued a formal complaint of bullying against the Respondent by way of written correspondence dated 11th January 2022. Thereafter she submitted that she suffered ongoing adverse treatment as a direct consequence of her raising these issues. While the Complainant outlined a series of ongoing adverse treatment, the purported detriment which occurred within the cognisable period for the purposes of the present complaint relates to an allegation that the Complainant was demoted from her duties. By response, the Respondent denied that the Complainant suffered any form of adverse treatment at any stage of her employment, and particularly during the cognisable period for the purposes of the present complaint.

In this regard, Section 27(1) of the Safety, Health and Welfare at Work Act defines “penalisation” as,

“…any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.”

Section 27(2) expressly list “demotion or loss of opportunity for promotion” and “transfer of duties, change of location of place of work, reduction in wages or change in working hours”, as forms of detriment that might give rise to a find of penalisation.

Section 27(3) of the Act the provides that,

“An employer shall not penalise or threaten penalisation against an employee for—

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work”.

In the matter of Toni and Guy Blackrock v Paul O’Neill [2010] 21 E.L.R., the Labour Court set out the following test to determine penalisation under the terms of the Act.

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

In consideration of the foregoing, the Complainant must satisfy the following tripartite test in order to be successful in her complaint. She must firstly demonstrate that she made a complaint to the Respondent in accordance with Section 27(3). Thereafter, she must demonstrate that she suffered a detriment as defined by Section 27(2). Finally, the Complainant must demonstrate a causal link between the two, in order for the detriment to be deemed penalisation for the purposes of the Act.

In addition to the foregoing, the Complainant further submitted that the adverse treatment complained of consisted penalisation under the Health Act.  Section 55M(1) of the same provides that,

 “An employer shall not penalise an employee for making a protected disclosure.”

A “protected disclosure” for purpose of the impleaded legislation provision is defined in Section 55B,

“Where an employee of a relevant body makes, in good faith, a disclosure to an authorised person and the employee has reasonable grounds for believing that it will show one or more of the following:

(a) that the health or welfare of a person who is receiving a health or personal social service in accordance with this Act has been, is or is likely to be at risk;

(b) that the actions of any person employed by or acting on behalf of the relevant body has posed, is posing or is likely to pose a risk to the health or welfare of the public;

(c) that the relevant body or a person employed by or acting on behalf of the relevant body failed, is failing or is likely to fail to comply with any legal obligation to which the relevant body or person is subject in the performance of the relevant body’s or person’s functions;

(d) that the conduct of the relevant body or of a person employed by or acting on behalf of the relevant body has led, is leading or is likely to lead to a misuse or substantial waste of public funds;

(e) that evidence of any matter falling within any of paragraphs (a) to (d) has been, is being or is likely to be deliberately concealed or destroyed;

the disclosure shall be a protected disclosure under this Act.”

Thereafter, Section 55Q provides for a definition of penalisation in identical terms to the Safety, Health and Welfare at Work Act, expressly enumerating “demotion or loss of opportunity for promotion” and “transfer of duties, change of location of place of work, reduction in wages or change in working hours”, as forms of detriment that might give rise to a find of penalisation.

In these circumstances, it is apparent that same tripartite test, outlined above, will apply to both allegations of penalisation advanced by the Complainant. At the outset of the initial hearing, it was agreed that while no legislative bar exists to maintaining both complaints in parallel, the issue of double recovery may arise in circumstances whereby the Complainant is successful in both applications.

Regarding the initial part of the test, it is apparent that in the course of her employment, and most notably from 11th January 2022, the Complainant raised multiple, lengthy and formal allegations against both the Respondent. While the parties remained at absolute odds regarding the majority of the present dispute, no issue was raised regarding the Complainant’s failure to notify the Respondent of either a threat to her health and safety, or that the Respondent was breach of their obligations under the Health Act. In these circumstances, it is not controversial that the Complainant complied with the first part of the test as outlined.

Thereafter, the matter of the alleged detriments suffered by the Complainant was highly disputed between the parties. While the Complainant referenced several forms of alleged detriment in her submission, in consideration of the cognisable period for the purposes of the impleaded Acts, the primary focus of the hearings was the allegation that the Complainant was demoted from her position following the communications referenced above.

At the outset of her submission, the Complainant outlined her position regarding the Respondent’s failure to formally regrade her position from a grade six employee to a grade seven employee. A review of the relevant paperwork demonstrates that this issue predated the referral of the protected act by a considerable period of time. As such, the issues concerning this alleged portion of the demotion could not form the basis of penalisation for the purposes of the present investigation.

The position adopted by the Complainant in respect of these matters was that thereafter, the Respondent sought to orchestrate a situation whereby her job title and duties were amended, and she was offered alternative work that constituted a significant diminution in her status and a demotion from her duties. In this regard, the Complainant opened a series of referrals to an occupational health specialist drafted by a member of the Respondents HR function. In these documents, it was noted that the description of the Complainant's job title was amended from document to document. In this regard, the Complainant was intermittently described as a business manager at grade six, or as an administrative grade at Senior Staff Officer level at grade six. On the final such referral for the purposes of the present complaints, the document simply stated that the Complainant was to be assigned alternative work duties and located at an alternative location. By submission and in evidence, the Complainant stated that these descriptions fundamentally minimised and reduced her role and duties. She further submitted that the purpose of instructing the occupational health specialist in this manner was to ensure that she be assigned alternative duties below her present grade in an attempt to demote her.

In answering this allegation, the Respondent stated that these descriptions were for the purposes of a simple administrative function and did not represent a strict designation of her duties and status within the organisation. They submitted that at all relevant times, the Complainant was treated as a grade six business manager and retained the job specification, salary, and all other entitlements relevant to that post. The job title of business manager was itself quite wide ranging, and a great deal of duties could fall under this designation. As part of the response to the Complainant's complaints, the Respondent sought to place her in an alternative location, which would potentially necessitate some alternative duties. In these circumstances, it was denied that the Complainant suffered any form of detriment as defined by the Acts.

Following the referral of the complaints on the part of the Complainant, she commenced a period of ongoing sick leave. In these circumstances, the Respondent is obliged to engage with her to determine to her fitness for work and to explore, what, if any, amendments could be made to her working practices to facilitate her return to work. During a period of long-term absence, the Respondent would normally be expected to engage with an Occupational Health Specialist to provide expert advice to facilitate and inform this process. To ensure that the relevant specialist has the required information to fully investigate the matters, a referral form is normally completed by an employer. In these circumstances, it is apparent that the descriptions used by the Respondent are simply a method of providing the specialist with the information required to perform their duty. This information cannot serve to remove, alter or in any amend an employee’s status within an organisation. The information is descriptive only and may be contested by the employee in question should they disagree with the same. From the documents and evidence provided, it is apparent that while the parties are in dispute about the correct grading of the Complainant prior to issuing the complainant, on the date of he same being communicated, the Complainant was formally engaged as a grade six business manager. It was apparent that the Complainant was never demoted from this role, not was she threatened with the same. While the Respondent could have acted with greater precision in completing the description element of the occupational health referrals, I agree with their submission to the effect that these are administrative descriptions only and cannot serve to amend an employees’ contractual terms.

Having regard to the foregoing, I find that the Complainant did not suffer a detriment as defined either legislative provision within the cognisable period and in these circumstances her complaints of penalisation are deemed to be not well-founded.

Regarding the allegation under the Terms of Employment (Information) Act, the Complainant asserted that she performed the duties of a grade seven role but was never formally assigned to the same.  In circumstances whereby the Complainant was never formally assigned to a grade seven role, the Respondent was under no obligation to amend the contract in accordance with section five of the relevant legislation, and consequently it is found that this complaint is not well-founded.

Regarding the complaint under the Organisation of Working Time Act, the Complainant has alleged that the Respondent failed to carry over certain entitlements, comprised of Public Holiday, accrued annual leave and time off in lieu of time worked (commonly referred to as TOIL). By submission, the Complainant’s calculations encompassed a period of over three years prior to the referral of the present complaint. In answering this complaint, the Respondent submitted that the majority of the complaint, as presented, was statute barred. In addition to the same, they submitted that no breach occurred on the portion of the complaint that occurred within the cognisable period for the purposes of the present complaint.

In this regard, Section 19 provides for a statutory annual leave entitlement of four weeks for a full-time employee in each leave year.

In the matter of Terveys-Ja Sosiaalialan Neuvottelujargesto (TSN) ry v Hyvinvointialan liito Ri C-609/17 and C-610/17, (referred to hereafter as “TSN”) the CJEU held that,

“…rights to paid annual leave thus granted beyond the minimum required by Article 7(1) of Directive 2003/88 are governed not by that directive, but by national law, outside the regime established by that directive”

In the matter of Tapastreet Limited -v- Joseph Mitchell WTC/16/87 the Labour Court held that once a Complainant had received their statutory entitlement, no claim arose under the Act regarding a contractual agreement in excess of the same.

In the matter of Waterford County Council v O’Donoghue DWT0963, the Labour Court stated that,

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

In Singh & Singh Ltd and Guatam DWT0544 the Labour Court held, relying on the decision of Lavan J in Royal Liver v Macken [2002] 4 IR 428, that,

“From this judgement it is clear that where an employer fails to provide an employee with the requisite amount of paid annual leave the contravention of the act occurs at the end of the leave year to which the leave relates.”

The matter of accrual of annual leave has been the subject of much consideration in recent times. In the matter of Kreuziger v Land Berlin C-619/16 the CJEU held as follows,

‘…it cannot be inferred from the Court’s case-law mentioned in paragraphs 30 to 33 of the present judgment that Article 7 of Directive 2003/88 should be interpreted as meaning that, irrespective of the circumstances underlying the worker’s failure to take paid annual leave, that worker should still be entitled to the right to annual leave referred to in Article 7(1), and, in the event of the termination of the employment relationship, to an allowance by way of substitution therefor, pursuant to Article 7(2).’

Later, at paragraph 42,

‘…the Court has in particular held that Article 7(1) of Directive 2003/88 does not in principle preclude national legislation which lays down conditions for the exercise of the right to paid annual leave expressly conferred by the directive, including even the loss of that right at the end of a leave year or of a carry-over period, provided, however, that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise the right conferred on him by the directive.’

And at paragraph 52,

‘…the employer is in particular required, in view of the mandatory nature of the entitlement to paid annual leave and in order to guarantee the effectiveness of Article 7 of Directive 2003/88, to ensure, specifically and transparently, that the worker is actually given the opportunity to take the paid annual leave to which he is entitled, by encouraging him, formally if need be, to do so, while informing him, accurately and in good time so as to ensure that that leave is still capable of procuring for the person concerned the rest and relaxation to which it is supposed to contribute, that, if he does not take it, it will be lost at the end of the reference period or authorised carry-over period, or upon termination of the employment relationship where the termination occurs during such a period.’

In the matter of Legal Aid Board v Theresa McAteer, DWT 2318, the Labour Court found annual leave accrued in circumstances whereby,

“…the Respondent has not discharged the burden of proof they bear, to show that the Complainant was informed accurately, and in good time, that if she did not take the annual leave within the reference period the annual leave would be lost.”

Regarding the accrual of annual leave whilst on sick leave, Section 19(1A) of the Act, as amended, provides that,

“For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.”

Having regard to the foregoing, it is apparent that an employer has a duty to inform an employee of their obligation to utilise their accrued annual leave within the statutory leave year. In circumstances where they do not, or where an employee is prevented from taking their annual leave within a leave year, their entitlement may accrue over a period of time outside of the six-month cognisable period. In light of the authorities cited above, this entitlement relates to statutory annual leave only and has no application to a contractual entitlement in excess of the same, to include TOIL.

In answering these claims, the Respondent produced correspondence issued to the Complainant on 16th December 2019. Attached to this correspondence was a memorandum which set out the Respondent’s position regarding the carry over of annual leave generally, and a specific exemption for that year only.  This memorandum expressed the position that the option to carry forward annual leave to subsequent years was on an exceptional basis only, and stated that any annual leave must be taken in the current year or would otherwise extinguish. In these circumstances, it is apparent that the Complainant was aware of her responsibility to avail of her annual leave within the leave year and the Respondent's position regarding the potential extinguishment of same.

Notwithstanding the foregoing, it is common case that the Complainant commenced a period of certified sick in February 2021 and a period of administrative leave on 1st September 2022. This administrative leave then continued to the date of lodgement of the present complaint. By submission, the Respondent accepted that the Complainant accrued annual leave during her period of sick leave and the same was added to her general entitlement.

During the period of “administrative leave”, being a period of approximately 19 months, the Complainant was in receipt of full pay, and it can only be assumed that the Respondent deemed the same be to be working time. In this respect, no evidence was provided of the Respondent’s attempts to notify of the Complainant of her annual leave entitlement or to warn her that the same would extinguish if not used within the relevant year. While the Respondent sought to rely on earlier memorandums being issued regarding the use of annual leave, these related to standard working time only. While the Complainant was on administrative leave, she had limited or no access to the Respondent’s internal systems and could not request or avail of annual leave in the standard manner. Having, regard to the foregoing, I find that the Complainant accrued annual leave whilst on sick leave in accordance with her statutory entitlement. I further find that this entitlement continued to accrue whilst on administrative leave. Given that the Complainant was entitled to carry the same over in accordance with the authorities cited above, I find that the Respondent partial refusal of the same constitutes a breach of Section 19 and the complaint is deemed to be well-founded.

Regarding redress, Section 23 of the Act permits a payment of compensation for unused annual leave on the cessation of employment only. Given that the Complainant remains an employee of the Respondent I find that the Respondent should add the annual leave accrued over the 19 months from the commencement of the administrative leave to the referral of the complaint to the Complainant’s entitlement. I further direct that the Respondent pay the complaint the sum of €1,000 in compensation. 

CA-00062552-001 – Complaint under the Terms of Employment (Information) Act

I find that the complaint is not well-founded.

CA-00062552-003 – Complaint under the Organisation of Working Time Act

I find that the complaint is well-founded.

Regarding redress, Section 27(3) provides as follows,

“A decision of an adjudication officer…in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment”.

In accordance with subsection A, I declare that the complaint is well-founded.

In accordance with subsection B, I require that the Respondent add the accrued annual leave accrued from the period 1st September 2022 to 2nd April 2024 to the Complainant’s annual leave entitlement.

In accordance with subsection C, I require the Respondent to pay the Complainant the sum of €1,000 in compensation.

CA-00062552-004 – Complaint under the Industrial Relations (Amendment) Act

I find that the complaint is not well-founded.

CA-00062552-005 –Complaint under the Safety Health and Welfare at Work Act

I find that the complaint is not well-founded.

CA-00062552-006 –Complaint under the Health Act

I find that the complaint is not well-founded.

Penalisation, Detriment, Demotion, Annual Leave, Accrual, Administrative Leave