Earley v The Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms. Justice Kennedy
• Judgment Date: 30 July 2015
• Neutral Citation: [2015] IEHC 520
• Docket Number: [Record No. 2015/5504 P]
• Court: High Court
• Date: 30 July 2015

BETWEEN

HELEN EARLEY

PLAINTIFF

AND

THE HEALTH SERVICE EXECUTIVE

DEFENDANT

[2015] IEHC 520

Kennedy J.

[Record No. 2015/5504 P]

THE HIGH COURT

Employment – Breach of contract of employment – Re-assignment – Fair procedures – Interlocutory injunction – Balance of convenience

Facts: The applicant sought an interlocutory injunction to restrain the defendant from reassigning the applicant from her current position and also appointing another person to the position of the applicant. The applicant contended that her change of role, for a brief period, was made due to industrial considerations under pressure from peer groups for the reforms that she wished to bring to the health sector. The applicant alleged that the purpose for which her re-assignment had been fixed was without any basis because the alleged incidents within the relevant service users had already been investigated and preventive measures had been taken to tackle the same.

Ms. Justice Kennedy granted an interlocutory injunction to the plaintiff. The Court held that in cases concerning contract of employment, the Court should adopt a flexible approach and assess where the balance of convenience lay. The Court found that the temporary assignment of the plaintiff was for an unspecified period and the damages for loss of her reputation caused by removing her from her position could not be compensated by damages as proposed by the defendant.

JUDGMENT of Ms. Justice Kennedy delivered 30th day of July, 2015

Introduction

1 These proceedings commenced by way of plenary summons issued on the 9th July, 2015. The plaintiff seeks interlocutory reliefs including, inter alia, seeking to restrain the defendant from reassigning her temporarily from her current position, as Area Director of Nursing, Galway Roscommon Mental Health Service and seeking to restrain the defendant from appointing another person to her position.

2 The plaintiff has been employed by the defendant since 1998 and was appointed to her current position in 2012. She is the Senior Manager with responsibility for the management, control and direction of nursing within those areas. She has responsibility for more than 60 facilities across the counties of Galway and Roscommon. She is now 55 years old and has an unblemished history of employment with the defendant.

3 By way of letter dated the 1st July, 2015, she was advised by Mr. Gloster, Chief Officer of The Health Service Executive Mid-West and interim chief officer of the HSE West, that she was to be temporarily reassigned, without prejudice, as an Area Director of Nursing, in a specialised capacity to the Programme Management Office of the National Mental Health Division of the HSE. This reassignment took effect from the 6th July, 2015, on which date Mr. Brian O'Malley was appointed as Acting Area Director of Nursing. Mr. O'Malley is only in this position pending the determination of these interlocutory proceedings.

4 It is common case that there have been alleged incidents within the relevant area involving service users, and that anonymous letters of complaint have been received by the defendant, some of which relate to these incidents. The defendant contends that it has determined to carry out appropriate enquiries by reason of these matters, the manner in which they were handled and the concerns of the Mental Health Commission. Such enquiries are threefold: specifically, a ‘systems analyses’, a full ‘national review’ and a ‘screening process’. The latter relates to an investigation of the anonymous correspondence.

5 The defendant contends that the plaintiff has been validly reassigned on a temporary basis and that she remains in the employ of the defendant, instructed to perform duties commensurate with her skills, experience and status as a director of nursing. Such reassignment, the defendant asserts, is imperative in the short term.

6 It is undisputed that the plaintiff has been the focus of personalised attacks from the Psychiatric Nurses Association (‘PNA’), which she believes is as a result of her role in implementing changes within the HSE. She contends that the true motivation behind her reassignment is that of industrial relations considerations and not for the reasons advanced by the defendant. She contends that the anonymous complaints are without foundation and have been wrongly seized upon by the defendant as purported justification for the reassignment.

7 In summary, the plaintiff objects to her temporary reassignment, saying that what is being forced upon her is in breach of her contract of employment, fair procedures and without any lawful basis. She seeks an interlocutory injunction which would restrain the defendant from so doing.

8 The defendant relies upon s. 22 of the Health Act 2004 and clause 4 of the plaintiff's contract of employment. The defendant contends that there is an implied term in every contract of employment permitting an employer to manage its affairs in an appropriate manner.

Background

9 The plaintiff's role is that of Senior Manager and she is responsible for over 60 facilities in the counties of Galway and Roscommon. The defendant became aware of five incidents involving a service user, and the defendant considers these incidents to be very serious. According to the affidavit of Mr. Gloster, a question arose as to whether the incidents were appropriately reported or escalated. He makes reference to concerns expressed by the Mental Health Commissioner and to the receipt of anonymous complaints by the defendant, the Mental Health Commission, the Nursing and Midwifery Board and the Minister for Health. A decision was taken by the defendant to commence the enquiries mentioned above. The Court was informed that the systems analyses review will take 12 weeks, the screen process will take a matter of weeks but no time was provided for the national review. Mr. Gloster avers that on conclusion of these enquiries, the defendant may be required to undertake other procedures including, if appropriate, procedures involving the potential discipline of staff members. The plaintiff is not currently the subject of any disciplinary or trust in care process.

10 Three of the alleged incidents occurred in 2014, the remaining two were in 2015, the latest of these incidents having occurred on the 6th June, 2015. The anonymous letters are dated in April, May and June, 2015.

11 The first approach to the plaintiff by her direct line manager, Ms. Cunningham was on the 21st May, 2015. Mr. Quinn S.C., for the plaintiff, points out that this approach was before the final alleged incident and before the second and third anonymous letter. However, Mr. Ward S.C. argues that the defendant determined to carry out the aforementioned enquiries, not based merely upon receipt of the anonymous letters but that the factual matrix leading to the defendant's decision to temporarily transfer the plaintiff is much broader than merely the anonymous letters.

12 Mr. Gloster deposes that arising from the decision to conduct the aforementioned enquiries, the plaintiff was requested initially to move to another position, which she declined. Thereafter, she was instructed to take up the aforementioned position on a temporary basis. He avers that the plaintiff was not singled out in any way but that other steps have been taken or are being taken in respect of other senior personnel who have responsibility for mental health services in county Roscommon. Further, it is necessary and appropriate that certain interim measures are put in place so that the defendant can be assured that the day to day care and management arrangements are appropriate. The defendant, it is submitted, cannot provide the necessary assurances until the aforementioned processes are complete and that, in those circumstances, it is imperative that the plaintiff take on an alternative assignment in the short term.

13 The plaintiff deposes that she subsequently sought the reasons in writing for requesting her voluntary reassignment and that she ultimately received a voicemail message on the 27th June, 2015 requesting her attendance at a meeting on the 29th June, 2015. She did not respond until the 29th June, 2015, repeating her request for reasons in writing and expressing her concern that she was being victimised for her efforts to implement reform. She avers that she received an email on the 29th June, 2015 which she states did not explain in cogent terms the reasons for requiring her reassignment. The email referenced, inter alia, the five incidents, a national HSE decision to conduct a full review of the Roscommon Mental Health Service and an unspecified ‘protected disclosure’. On the 1st July, 2015, the plaintiff received a formal letter from Mr. Gloster informing her of the defendant's decision to reassign her temporarily without prejudice.

14 The plaintiff deposes that the first three incidents were investigated and risk...