FULL RECOMMENDATION
CD/13/520
RECOMMENDATIONNO.LCR20667
(CCC-139962-13)
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES :
DEPARTMENT OF PUBLIC EXPENDITURE & REFORM
- AND PUBLIC SERVICE COMMITTEE OF ICTU
DIVISION :
Chairman: Mr Duffy
Employer Member: Ms Cryan
Worker Member: Ms Tanham
SUBJECT:
1. Critical Illness Protocol.
BACKGROUND:
2. The matter could not be resolved at local level and was the subject of a Conciliation
Conference under the auspices of the Labour Relations Commission. As agreement was not
reached, the matter was referred to the Labour Court on the 28th November, 2013, in
accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 16th December, 2013. The following is the Court's
Recommendation:RECOMMENDATION:
This matter came before the Court following the failure of the parties to agree on all
aspects of a protocol setting out the criteria against which discretion should be used to
provide extend paid sick leave in cases of critical illness. It follows on from
recommendations made by the Court in Recommendation LCR20335.
In relevant part that Recommendation provided as follows: 
The Court recommends that critical illness cover be provided for six months at full
pay and six months at half pay. The total maximum period of payment, including
rehabilitation pay, should remain two years.
On the question of the permitted incidence of this cover, the Court does not believe
that it would be either fair or reasonable to limit the availability of this facility in
the manner proposed by management. The Court does, however, recognise that
recourse to critical illness cover should be regarded as an exceptional and normally
non-recurring occurrence. It should also be accepted that provision of this facility,
to those whose circumstances require it, is within the discretion of management.
The Court does not believe that management should seek an unfettered discretion
in providing this facility. Rather the parties should have further discussion with a
view to reaching agreement on a protocol setting out the criteria against which this
discretion will be exercised,. This protocol should also provide for independent
appeals mechanisms in cases where the facility is withheld. The Court recommends
that such discussions should commence as soon as practicable on acceptance of
this Recommendation. If agreement is not reached this matter may be referred back
to the Court for a definitive recommendation.
While substantial agreement was made in local discussions and at conciliation,
agreement was not reached on the applicable criteria in relation three aspects of the
proposed protocol, namely: 
•Pregnancy related illness, including assisted pregnancy related illness
•Disability related illness
•Mental illness
In relation to each of these matters the Court recommends as follows: 
1.Pregnancy related illness, including assisted pregnancy related illness
The submissions from both the employer and union representatives addressed in
some detail the important issue of the application of the proposed Critical Illness
Protocol (CIP) in the case of pregnancy-related illness (including assisted
pregnancy related illness) In assessing this issue there are a number of important
considerations that should be taken into account:o
•Access to the CIP is recognised as exceptional and normally nonrecurring applying in general to serious illnesses of a specified severity
consistent with the criteria included in the Protocol in respect of which
the employer and union representatives are in broad agreement
•The employer submission points out that opening the Critical Illness
Protocol to all pregnancy related illness, without qualification would not
be consistent with the fundamental objective of new sick leave
arrangements insofar as it would permit automatic access to the CIP for
all pregnancy-related illness when fortunately most pregnancy related
illness is not critical
•The Public Services Committee’s (PSC) submission highlights the special
factors that apply in the case of pregnancy-related illness, including the
particular care requirements that are fully appropriate to safeguard the
women’s health and well-being as well as the importance of assuaging any
concerns regarding the availability of extended sick leave if it is required
owing to pregnancy-related illness.
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While the Court notes the employer’s position that the management discretion
provided under the Protocol could be applied to address the issue of pregnancy
related illness that do not strictly meet the medical criteria set out in the CIP, the
Court believes that the circumstances in which pregnancy related illness should
be covered by the CIP should be specifically set out.
Notwithstanding this the Court recognises that access to CIP should not be
automatic for a pregnancy related illness.
On that basis the Court recommends a balance which takes account of the
employers perspective and that of the public service unions and recommends
that in the circumstances that a pregnancy related illness gives rise to the
requirement for two or more consecutive days of in-patient hospital /clinic care,
the employee will be entitled if required where the illness is on-going to avail of
extended sick leave under the Critical Illness Protocol.
2. Disability related illness
The issue of the extent to which disability-related illnesses would fall under the
Critical Illness Protocol and on that basis potentially benefit from extended paid
sick leave was discussed in the Submissions received from both parties. A key
principle governing the operation of the Protocol as set out in Labour Court
Recommendation No. 20335 was that access to the extended paid sick leave
arrangements under the CIP should be exceptional. In practical terms this
implies that the majority of absences relating to illnesses, medical conditions and
injuries should be accommodated under the standard sick leave system. The
central question to be determined, therefore, is the prevalence of what could be
defined as disability-related illness which could potentially be subject to the CIP
if all disability-related illnesses were automatically encompassed under the
Protocol.
In this context the management submission includes the assessment of the Chief
Medical Officer in the Civil Service who advised that the legal definition of
disability is such that a very large proportion of medical conditions could be
represented as related to disability. In particular the analysis submitted with the
management submission illustrates how the application of the legal definition of
disability applies in practice leading to a situation that many conditions, which
would not ordinarily be considered critical conditions, are likely to be classed as
a disability.
Consequently, the Court recommends on the basis that the Protocol as drafted
already applies to disability-related illnesses that are critical and of a specified
severity that no further amendment should be made to the CIP that would lead
to its automatic application to all disability-related illnesses. However, the Court
believes that there should be an explicit recognition of what is already implicit in
the section of the Protocol dealing with the scope for management discretion that
serious disability-related illnesses that would not strictly meet the medical
criteria should be eligible for consideration of the granting of extended paid sick
leave in particular in circumstances that an accommodation cannot be made to
facilitate their return to work.
Management shall also, in the case of an employee with a disability related
illness, take steps to facilitate a reasonable accommodation that takes account of
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the particular needs of the individual in considering if such illness might be
regarded as 'critical' for the purposes of this protocol.
The Court also believes that it is important that employees with a disabilityrelated illness are not precluded from the option of returning to work where that
was possible on the basis of their employer taking all reasonable steps to
accommodate the return to work of an employee with a disability related illness
consistent with service requirements. The Court, therefore, recommends that the
section of the Protocol setting out management discretion to provide access to
extended sick leave is modified to reflect the requirement for the employer to
take all reasonable steps in making an accommodation for a person with a
disability-related illness to return to work consistent with specialist occupational
health advice and service requirements.
3. Mental Illness
The final issue for consideration by the Court relates to the extent that the
Critical Illness Protocol should apply to mental illnesses. Mental illnesses can
range in severity from, for example, severe depression, bi-polar disorder and
schizophrenia to what might be diagnosed as stress-related mild depression or
anxiety. As set out in the management submission, all serious critical mental
illnesses automatically fall within the Protocol. Public service management also
make the case that in circumstances where all mental conditions fell within the
Protocol, the fundamental objective of the reform of sick leave which is to reduce
the cost and incidence of sick leave would be undermined.
The union submission argues for the inclusion of all mental illness, regardless of
severity, to be covered by the CIP.
The Court notes the position reported in the management submission that the
expert medical and occupational health evidence and advice is that outside of the
illnesses covered by the CIP -- which usually require hospitalisation – in the
majority of the cases of mental illnesses the conditions are not of their nature
critical and with proper medical treatment and other support should not give
rise to extended absence from work. Indeed in many cases returning to work and
avoiding a prolonged absence from work has a measurable therapeutic benefit.
On the basis that:o
(i) all employees with critical mental illnesses will have automatic access
to extended sick leave under the CIP,(ii) that there is a management
discretion available for cases that may not meet the specific criteria for
inclusion under the CIP and
(iii) that more general access to the CIP would impact adversely on the
main objective of the reform of sick leave for the public service
the Court does not recommend any further change to the Protocol in the case of
mental illness.
Conclusion
The Court recommends that the draft Protocol be amended to reflect the
recommendations set out above and that as so amended it be accepted by all parties.
Signed on behalf of the Labour Court
Kevin Duffy
20th December, 2013______________________
JFChairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Foley, Court
Secretary.