The High Court has refused an application by a hospital worker to quash a decision that prevented her from working from home. The applicant claimed that she was at high risk from Covid-19 due to her health history and that the hospital failed to comply with HSE requirements in making the decision.
Delivering judgment in the case, Ms Justice Miriam O’Regan held that the case arose solely from the individual contract of employment between the applicant and the hospital. As such, the court held that the case was a matter of private law and was not amenable to judicial review.
The applicant worked for a hospital as an Attendant Team Leader. She retired from her position in October 2020 on her 65th birthday. However, she had not worked in the hospital since 2 April 2020, when she was advised that she was a close contact of a staff member who had tested positive for Covid-19.
The applicant had previously been diagnosed and treated for breast cancer in 2016 and also suffered from diabetes. As such, she argued that she did not wish to physically return to work and wanted to work from home.
A doctor in the hospital’s Occupational Health department deemed the applicant as fit to return to work in the hospital. The doctor took the view that the applicant did not qualify as at “very high risk” from the virus and that she did not need to cocoon.
The hospital argued that it had put in place adequate precautions for employees who had to work in person. The hospital stated that the applicant was only at “high risk” rather than “very high risk” of Covid-19 and therefore was required to attend work.
The applicant filed a grievance with the hospital HR department in July 2020. The applicant complained that the hospital was not complying with HR Circular 34/2020, which she said gave rise to a duty of care. Further, she provided two expert reports which supported her request to work from home.
The applicant and a SIPTU representative met with a hospital representative in October 2020. A month later, the decision-maker wrote to the applicant, stating that there was no suitable, alternative employment available to her during the relevant period. Further, the decision-maker said that the doctor in the Occupational Health department had considered the applicant’s medical reports but did not think that cocooning was warranted.
The decision-maker concluded that the applicant’s health status was “appropriately and professionally reviewed” and the grievance was not upheld. Subsequently, the applicant issued judicial review proceedings against the HSE and the hospital, claiming that the decision was irrational, that she had not been given adequate reasons for the decision and that the hospital failed to comply with HSE requirements.
The respondents defended the proceedings on the basis that the matter related to the private employment dispute and, accordingly, the case was not amenable to judicial review. The respondents also contested the merits of the application and submitted that the hospital was correct to not allow the applicant to work from home.
The court began by considering whether the case was appropriate for judicial review. The court outlined the well-established principle that private law matters are generally not amenable to judicial review (Beirne v. The Commissioner of An Garda Síochána  ILRM; Geoghegan v. Institute of Chartered Accountants in Ireland  3 IR 86). Ordinarily, a decision-maker must exercise a public statutory function in order for judicial review to apply to their decisions.
The court also considered Bloxham v. Irish Stock Exchange  IEHC 301, and held that: “Judicial review remedies are addressed to persons or bodies who can be held answerable in respect of the performance of their duty or function, the origins of such function, jurisdiction or authority deriving directly or indirectly from the State.”
In O’Donnell v. Tipperary (South Riding) County Council  IESC 18, it was noted that the burden was on a respondent to prove that a case was a private law matter and that a court would exclude judicial review only if the case arose “solely and exclusively from the individual contract and private law.”
Additionally, Ms Justice O’Regan held that the wider consequences of a decision were important factors to be taken into account (Kelly v. Board of Management of St. Joseph’s National School  IEHC 392).
Having considered the case law, the court was satisfied that the matter was not amenable to judicial review. The court held that the case was not a disciplinary matter and clearly related to the individual working conditions of the applicant. The court noted that the employment was governed by contract rather than by statute. As such, the court held that the respondents had discharged the burden of proof that the case related to a private law matter.
The court also went on to consider the merits of the application and held that the applicant would have failed on this issue as well. The court held that the applicant failed to demonstrate a breach of fair procedures. It was appropriate for the hospital to seek the views that it did and the applicant was given an opportunity to present her position on the matter.
Further, the court held that the medical reports relied on by the applicant did not appear to recommend cocooning. The oncological expert stated that the applicant’s exposure to Covid-19 should be minimised and that “everything should be done to avoid possible contact with the virus at work”.
Similarly, the endocrine expert stated that the applicant should “continue to self-isolate as much as possible in order to avoid contact as her immune status is compromised by her condition”.
The court held that the applicant failed to establish that the reports required her to cocoon or self-isolate. Further, the reports did not establish that the applicant was at “very high risk” of Covid-19. Accordingly, the decision of the hospital was not irrational or unreasonable.
The court refused to grant the reliefs sought.