Revenue employee challenges exclusion from sick leave scheme

A long-serving employee of the Revenue Commissioners has claimed it operates an “inflexible” policy of refusing extended sick leave for employees with mental health difficulties which do not involve in-patient hospital care.

In High Court proceedings, the woman claims Revenue has unlawfully fettered its discretion in its operation of the critical illness extended sick leave scheme, acted unfairly and outside its powers and breached her rights to natural and constitutional justice.

It has improperly failed to include, adequately or at all, provision in the Critical Illness Protocol (CIP) for those suffering with mental health difficulties, she contends.

The woman, who by court order cannot be identified, says she found remote working from autumn 2020 “very isolating”, her mental health began to deteriorate and she had to take sick leave in late 2020.

She returned to work earlier this year but went on sick leave two months later due to anxiety and depression.

In a May 2021 report, her GP expressed the opinion her prognosis was unknown and would depend on work-related issues being adequately dealt with.

He diagnosed her as suffering from work-related stress with associated depression-anxiety and was guarded about her long-term prognosis.

She claims her application for extended leave under the Revenue’s CIP, which was supported by her line managers, was unfairly and unlawfully refused.

When her case came before Mr Justice Charles Meenan at the High Court on Monday, he granted leave to Micheál P. O’Higgins SC, with Brendan Hennessy BL, to seek judicial review and returned the matter to next month.

Mr O’Higgins said his client contends that Revenue has discretion to extend the scheme to her, even where she does not fulfil the medical criteria. If the court finds there is no such discretion, it should find the scheme is unconstitutionally prescriptive, he argued.

The woman claims her rights have been breached by the Revenue’s decision, upheld on internal appeal, that she is ineligible for inclusion in the critical illness paid sick leave scheme.

The CIP defines eligibility criteria for the granting of extended sick leave for critical illnesses. The scheme provides for six months leave at full pay and six months at half pay, subject to an overall limit of one year in a four year rolling period.

The decision whether to award extended sick leave is made by the Human Resources Manager following consultation with the Occupational Health Physician.

The CIP requires an employee to be medically unfit to return to their current duties and to have a medical condition with at least one of four characteristics. These are: an acute life-threatening physical illness; a chronic progressive illness with well-established potential to reduce life expectancy in circumstances where there is no medical intervention; major physical trauma ordinarily requiring corrective acute operative surgical treatment and; in-patient hospital care of two consecutive weeks or more.

The woman accepts she did not meet the medical criteria, as accepted and understood by management to date, but contends Revenue erred in determining management had no discretion to grant her application.

It should have done so for reasons including the “exceptional matters” raised, the nature of her illness and its connection with work, and “strong letters of support” from her line managers, she claims.