Judgment No. 4800
Decision
1. The impugned decision of 17 May 2021 is set aside, as are the decisions of 2 April 2019 and the decision of 8 August 2019, to the extent set out in consideration 18 of the judgment.
2. Four days shall be added to the complainant’s leave entitlement, as indicated in consideration 19.
3. All other claims are dismissed.
Summary
The complainant challenges the rejection of her requests for special leave for very serious illness of a child.
Judgment keywords
Keywords
complaint allowed; sick leave
Consideration 3
Extract:
It is clear from [Article 59(3) and Article 89 of the Service Regulations and Rule 8 of Circular No. 22 of 11 May 2015] that special leave requested by an employee for “very serious illness of a child” can only be granted following an opinion from the medical adviser, who must determine the seriousness of the illness in question, and that this opinion must be given in the light of a medical certificate provided by the doctor who examined the child – or, if applicable, on the basis of other documents or information provided by that doctor – containing sufficient details of the condition diagnosed to allow the medical adviser to make the necessary assessment.
[...]
[W]hile it is true that [...] Rule 8(b)(i) of Circular No. 22 does not, when listing the matters to be included in the medical certificate, expressly mention a diagnosis of the illness in question, the need for that diagnosis to be mentioned necessarily follows from the wording of that subparagraph where it specifies that the medical adviser is to inform the Office “whether in his opinion the medical conditions of Article 59(3)i) are met”, which means that the medical adviser must be in a position to verify the “very serious” nature of the illness in question.
[A]lthough it is true that the reference in Article 89(3) of the Service Regulations to the “employee’s doctor” is not appropriate in the particular case of leave requested for the illness of a child, it is clearly to be taken, in the legal context relevant to that situation, as a reference to the doctor consulted to examine the child, as is also clear from the wording used in Article 59 and in Circular No. 22.
Keywords
sick leave; interpretation of rules
Consideration 6
Extract:
[R]eliance on national law, which cannot be enforced against the EPO, does not create a legal obstacle to the application of rules and regulations governing permanent employees of the Office (see, in particular, Judgments 4553, consideration 4, and 4401, consideration 6).
Reference(s)
ILOAT Judgment(s): 4401, 4553
Keywords
applicable law
Consideration 15
Extract:
[T]he complainant has submitted evidence [...] from which it is clear that, on several occasions, she herself was granted special leave for serious illness of a child simply on the basis of ordinary medical certificates and that requests from employees for that type of leave are regularly granted without any other formality. The existence of such a practice which, according to the Tribunal’s case law, means that the Organisation is bound to comply with it (see, for example, Judgments 3680, consideration 12, and 1125, consideration 8) cannot therefore be seriously disputed.
Reference(s)
ILOAT Judgment(s): 1125, 3680
Keywords
practice; sick leave
Consideration 16
Extract:
[I]f the Office were to submit requests for special leave for serious illness of a child made under the aforementioned Article 59(3)(h) to the medical adviser for an opinion and, in order that those requests might be investigated, were to require the production of a medical certificate including a diagnosis of the medical condition involved, as in the case of requests for special leave for very serious illness, this would, in fact, breach the applicable provisions of the Service Regulations.
The Tribunal must point out that, in contrast to Article 59(3)(i), which deals with leave for very serious illness of a child, Article 59(3)(h) does not, in this regard, provide that the seriousness of the illness must be attested to by a doctor. The provisions of Article 89 of the Service Regulations are therefore not applicable to requests for leave made under Article 59(3)(h). The same goes for Rule 8 of Circular No. 22, which [...] only governs special leave for very serious illness (or hospitalisation) of a child referred to in Article 59(3)(i), and there is no other rule in that circular, nor [...] in any other existing set of rules, that contains similar provisions in relation to the leave referred to in Article 59(3)(h).
[...] However, it is clear that there is no requirement, when a request of that type is made, for the seriousness of the illness relied on to be evident from the medical certificate produced or for the grant of that leave to be conditional on the medical adviser’s opinion.
Keywords
sick leave; interpretation of rules
Consideration 17
Extract:
[A]llowing the complainant to access this benefit would entail the redefinition of her requests, since they referred to special leave for “very serious illness”, rather than “serious illness”, of a child. However, in this area, the Organisation should not adopt an excessively formalistic approach towards its employees [...].
Keywords
due process; sick leave
Consideration 22
Extract:
[T]he complainant seeks reimbursement of the registration fee she had to pay, under Article 5(3) of the Implementing Rules for Articles 106 to 113 of the Service Regulations, when she lodged her internal appeal with the Appeals Committee. But that fee forms part of the costs of the internal appeal procedure. The Tribunal will only award costs for internal appeals in exceptional circumstances (see, for example, Judgments 4644, consideration 3, and 4392, consideration 13), and such circumstances do not exist in the present case.
Reference(s)
ILOAT Judgment(s): 4392, 4644
Keywords
costs for internal appeal procedure
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