The Applicant (B) in this case brought an application to the High Court to seek to impugn a decision taken by the first named Respondent (Health Service Executive) on the 5th of November 2020, when the Respondent decision maker confirmed that he was not in a position to uphold the Applicant's grievance regarding cocooning as a result of Covid-19.

In this matter, the Applicant argued that the Respondent failed to comply with HSE requirements, failed to apply fair procedures by reason of irrationality of the decision, and failed to give adequate reasons in breach of the Applicant’s rights including her rights, pursuant to her employment contract.

By way of background to the case, the Applicant commenced working at the Hospital as an Attendant Team Leader.  An employment contract was signed and provided “Disciplinary and grievance issues are subject to the Hospital Policies and procedures …”, in other words to be dealt with internally as a individual contractual issue. The Applicant retired from her position on the 19th of October 2020, on her 65th birthday.

The Applicant worked in the hospital up until the 2nd of April 2020, when she was advised that she was in contact with a staff member who tested positive for COVID-19 and therefore she was obliged to self-isolate for fourteen days.  At the end of the above period, one of the Respondent’s doctors, (Doctor X) in the Occupational Health Department deemed the Applicant fit for work and took the view that the Applicant’s medical status did not warrant cocooning and she did not qualify for the category of “very high risk”. The Applicant had provided two supporting expert letters to state that should be moved to a different department in the Hospital as she was, in her view,  ‘high risk’ to warrant moving departments.   However, the Respondent did not support the view that the Applicant warranted cocooning and during the Applicant's absence she did not receive any pay as she had exhausted her sick pay entitlement.

In the Applicant’s letter of complaint which lead to the impugned decision, the Applicant advised that she was filing a grievance under the hospital grievance policy on the basis that inter alia, the Hospital’s HR Circular 34/2020 gave rise to a duty of care which had not been fulfilled.  The Respondent argued that the Applicant’s claim was not amenable to judicial review as it was an individual contractual matter.

The Court ruled that the Applicant did not demonstrate that it was irrational or in breach of fair procedures for the Respondent to seek and secure input from their Doctor (Doctor X).  The court noted that there was an in-person meeting between the Respondent decision maker, the Applicant and the Applicant’s SIPTU representative on the 8th of October 2020 without any involvement of Dr X.  It is noted that the Respondent also spoke to the Applicant in advance of his conclusion vis-à-vis potential other roles which the Applicant might fulfil within the hospital and no complaint was raised by the Applicant in regard to this interchange.

The Court referred to the decision that the hospital took the view that the relevant expert reports submitted by the Applicant did not in fact recommend cocooning. The Applicant did not establish the burden of proof on her to demonstrate that the supporting letters from her expert Oncologist and Endocrinologist was to confirm that the Applicant should cocoon or indeed self-isolate (“continue to self-isolate as much as possible”) or that Applicant was at a very high risk (as opposed to a high risk) of COVID-19 and therefore on that basis she has not established that the expert reports were either not accepted or were ignored.  The Court was satisfied that even the court was incorrect in the view that the issues raised herein solely and exclusively derive from an individual contract in private law, the court was satisfied that the Applicant did not discharge the burden of proof to secure an order of certiorari as she had not proved that it was a breach of fair procedures to have the supporting reports reviewed by the Respondent.

Key points:

An order of Certiorari can be granted to allow a Higher Court to review a decision made by a lower court or administrative body.  Judicial review can only be granted in a case where there was considered to be an exercise of a public statutory function regulated by statute, and by statutory order,  therefore not in cases such as the above where the issue solely and exclusively arises from a private law contract. It is the burden of the respondent to establish that the issue derives under a contract of private law. The Applicant’s employment status in this case was not statutorily governed but rather was referable to a contract duly executed and the Applicant therefore failed.
https://www.courts.ie/view/judgments/91d1b75f-1fa4-4da8-8ccc-dfef318451fc/977de986-efb4-42cb-a261-871be8b584ca/2021_IEHC_824.pdf/pdf