B v Health Service Executive & Anor (Approved)

Factual and Procedural Background

The Plaintiff commenced employment at The Hospital as an Attendant Team Leader in the department of The Hospital. The Plaintiff’s employment was governed by a contract which incorporated The Hospital's policies and procedures on disciplinary and grievance matters. In early 2020, the Plaintiff was exposed to a staff member who tested positive for COVID-19, resulting in a mandatory self-isolation period. Subsequent medical advice from the Plaintiff’s general practitioner and specialists recommended minimizing exposure to COVID-19 due to underlying health conditions, including breast cancer and diabetes. The Plaintiff sought to work from home or be assigned to an alternative area within The Hospital to avoid contact with COVID-19 patients. The Hospital’s Occupational Health Department, through Dr. Occupational Health, assessed the Plaintiff and deemed her fit for work, concluding that she did not qualify as "very high risk" warranting cocooning.

The Plaintiff filed a grievance under The Hospital's grievance policy on 27 July 2020, alleging failure by the Respondents to comply with relevant Health Service Executive (HSE) requirements, failure to apply fair procedures, irrationality of the decision, and failure to provide adequate reasons. The grievance was considered by the decision maker, who, after consulting with The Hospital management and Occupational Health, upheld the Respondents’ position and rejected the grievance on 5 November 2020. The Plaintiff retired on 19 October 2020.

The Plaintiff initiated judicial review proceedings challenging the Respondents’ decision not to uphold the grievance.

Legal Issues Presented

1. Whether the Respondents failed to comply with HSE requirements and applicable procedures in handling the Plaintiff’s grievance relating to COVID-19 workplace exposure.
2. Whether the decision to reject the Plaintiff’s grievance was irrational or in breach of fair procedures, including the adequacy of reasons provided.
3. Whether the grievance and decision are amenable to judicial review or constitute matters arising solely under private law contract.

Arguments of the Parties

Appellant's Arguments

• The Respondents failed to comply with HSE Circular 34/2020 and did not properly apply relevant guidelines.
• The Respondents ignored expert medical reports from the Plaintiff’s GP and specialists recommending avoidance of COVID-19 exposure and working from home.
• The decision was irrational and breached fair procedures, including failing to provide adequate reasons for rejecting the expert reports.
• The Plaintiff was entitled to alternative work arrangements or remote work due to her medical condition.

Respondents' Arguments

• The grievance proceedings and employment relationship arise solely under private law contract and are not subject to judicial review.
• The Occupational Health Department appropriately assessed the Plaintiff’s condition and followed HSE guidance, concluding no cocooning was warranted.
• Precautions were taken at The Hospital to protect high-risk staff where remote work was not feasible.
• The decision maker properly considered all relevant reports and information, including expert opinions and management input.
• The Plaintiff’s claim is resisted fully, including the argument that judicial review is not the appropriate remedy.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first examined whether the Plaintiff’s grievance and the Respondents’ decision were amenable to judicial review or were matters arising solely under private law contract. The Court applied established precedent, particularly the principle from Beirne v. The Commissioner of An Garda Síochána, that judicial review is excluded where the duty performed is manifestly private and derives solely from contract. The Court found that the employment relationship and grievance arose exclusively under contract law, with no statutory governance or disciplinary element invoking public law functions.

The Court noted the Respondents discharged the burden of proving the matter was manifestly private. The grievance concerned sick pay classification and eligibility, not a public function or statutory right. The loss claimed was limited to unpaid income during the relevant period.

Even if judicial review were available, the Court found no irrationality or breach of fair procedures in the Respondents’ decision. The decision maker properly considered the Plaintiff’s medical reports, including those from external specialists, and the Occupational Health assessment. The Court found the expert reports did not recommend cocooning or establish a "very high risk" status. The decision maker’s consultation with management and Occupational Health was reasonable and procedurally fair.

The Court also noted that the HSE Alama toolkit evaluation cited by the Plaintiff was introduced after the decision date and thus irrelevant to the grievance decision.

Holding and Implications

The Court’s final ruling was to refuse the reliefs claimed by the Plaintiff.

The claim for judicial review was dismissed.

The Court held that the grievance and decision arose solely under private law contract and were not amenable to judicial review. Alternatively, the Plaintiff failed to establish any procedural unfairness or irrationality in the decision. The direct effect is that the Respondents’ grievance decision stands, and the Plaintiff’s claims for remedies are denied. No new precedent was established by this ruling.