Court of Appeal: HSE’s reassignment of Area Director of Nursing constituted a breach of her contract of employment

About this case:

• Judgment:
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Inviting the parties to make submissions as to whether it was necessary for the Court of Appeal to grant any further reliefs, Mr Justice Gerard Hogan emphasised that it was irrelevant that the woman’s remuneration was unaffected by the reassignment, or that it was a temporary change on a without prejudice basis.

Background

In November 2012, Ms Helen Earley, was appointed as Area Director of Nursing, Mental Health Services for the Galway/Roscommon area pursuant to a written contract of employment.

It is clear from the terms of the job description for this position that this was a senior post within the HSE which entailed both clinical and management responsibilities.

Having been employed with the HSE since 1998, Justice Hogan stated that it was important to note that Ms Earley had an unblemished employment history.

In April and May 2015, the HSE received a series of anonymous complaints to the effect that several incidents had occurred at HSE facilities in the Galway/Roscommon area; and that these had not been dealt with appropriately by senior staff. A protected disclosure detailing certain complaints was also made by an identified member of the HSE staff.

It was decided that an investigation would be conducted in relation to these alleged incidents and the way they were handled.

Ms Earley was originally asked by her direct line manager whether she would be prepared to be re-assigned, but she declined to take this step.

In July 2015, Ms Earley received a letter from the Chief Officer of the HSE Mid-West and interim chief officer of the HSE West, to the effect that from the 6th July 2015 she was to be temporarily reassigned from her position as an Area Director of Nursing to the Programme Management Office of the National Mental Health Division of the HSE.

Ms Earley’s reporting obligations were also changed, as she was now required to report to the Head of Planning, Performance and Programme Management.

The letter also explained that her post would ‘be filled on a specific purpose contract pending further decision making’.

High Court

In the High Court in November 2015, counsel for Ms Earley submitted that Mr Justice Tony O’Connor should follow Rafferty v. Bus Éireann 2 I.R. 424, in which it was said that “at common law an employee is not required to do a fundamentally different job from that contracted for”.

Justice O’Connor did not accept that this is what had occurred in Ms Earley’s case, and added that he could not construe the terms of the contract “such that the plaintiff has a contractual right to preserve some right to remain as Area Director of Nursing until she otherwise agrees”. Furthermore, “the plaintiff has not been accused of wrongdoing and is not the subject of a disciplinary process” nor had she established any “loss of reputation or status due to the re-assignment decision”.

On the basis that the HSE had at least an implied entitlement to re-assign Ms Earley in circumstances where there were serious concerns about the functioning of the service and that such decision could only be challenged where something akin to bad faith had been established; Justice O’Connor found that the re-assignment of Ms Earley was lawful and he refused to grant her any of the injunctive or declaratory relief sought.

Court of Appeal

Justice Hogan explained that the core of Ms Earley’s case was her contention that the re-assignment amounted to a clear breach of her contract of employment, irrespective of whether the re-assignment was regarded as permanent or temporary.

The HSE argued that there was an express power to re-assign the plaintiff having regard to the provisions of the contact; and that in any case, there was an implied power to effect such a re-assignment.

Justice Hogan was satisfied that Ms Earley’s contract of employment did not permit her to be re-assigned from her existing contractual position with clinical and management responsibility in a designated service area to the Programme Management Office of the National Mental Health Service of the HSE, even if this did not entail any loss of remuneration or status and prestige.

Applying the tests for the importation of implied terms into a contract, outlined in Sweeney v. Duggan 2 I.L.R.M. 211, Justice Hogan was satisfied that ‘an implied term of the kind now claimed by the HSE would be inconsistent with the express wording of the contract of employment’.

Therefore, the assignment of Ms Earley to non-operational duties amounted to a plain breach of her contract of employment.

Justice Hogan also rejected the argument that the HSE was nonetheless free to take this course of action due to ‘some supposed implied term’.

Considering Ms Earley’s contract of employment, viewed in conjunction with the job description, there was ‘simply no basis’ by which Ms Earley could lawfully have been re-assigned from her position.

Delivering the judgment of the three-judge Court of Appeal, Justice Hogan concluded that the trial judge fell into error in concluding that the HSE had not breached Ms Earley’s contract of employment by re-assigning her; that this conclusion was unaffected by the fact that Ms Earley’s remuneration was unaffected, or that the re-assignment was expressed to be a temporary one on a without prejudice basis.

Allowing Ms Earley’s appeal, and granting a declaration to the effect that the re-assignment constituted a breach of her contract of employment, Justice Hogan invited the parties to make further submissions on the question of whether the grant of any further relief by the Court was necessary or appropriate.