Labour Court Database __________________________________________________________________________________ File Number: EED9010 Case Number: EEO912 Section / Act: S27EE Parties: SOUTHERN HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Claim by the Union concerning the alleged constructive dismissal of a nurse contrary to Section 3(4) of the Employment Equality Act, 1977.
Recommendation:
5. The Court has very carefully considered the arguments put
forward by the parties at the hearing. In particular it has
considered the submission made by the Union relating to the
provisions of, and the possible contravention of the Employment
Equality Act, insofar as compliance with the conditions of job
sharing relate to the sex of the worker.
It seems however to the Court that the validity of these points is
fundamentally undermined by the fact that the Boards agreement to
the extension of job sharing to certain grades of staff was
clearly tentative and subject to very specific conditions
regarding their right to request a return to full time duty.
In the case before the Court the Board has argued that quite apart
from its general decision not to extend the job sharing facility
to supervisory posts, in the case of the worker in question she
was in complete charge of the hospital during her hours of duty
and was also responsible for a regular contact and reporting
relationship with the matron.
The Court accepts that in these circumstances the
rsponsibility/reporting elements of the workers duties could not
be adequately carried out in a situation in which she attended
only one week in four.
The Board therefore, having regard to the terms under which
jobs-sharing was extended would seem to have had good reason to
end its operation in the case of this particular post.
Finally it appears to the Court that the worker having accepted
the job sharing terms as offered was fully aware that she could be
required at any time to return to full time duty.
In the circumstances the Court does not consider the Union's case
to be sustained.
Division: Mr O'Connell Mr Collins Mr Walsh
Text of Document__________________________________________________________________
EED9010 ORDER NO. EEO291
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: SOUTHERN HEALTH BOARD
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Claim by the Union concerning the alleged constructive
dismissal of a nurse contrary to Section 3(4) of the Employment
Equality Act, 1977.
BACKGROUND:
2. The Union contends that the nurse concerned, who was employed
as a Night Sister at the Erinville Maternity, Hospital, Cork, was
constructively dismissed. In 1985, the Minister for Health
introduced a job-sharing scheme for full time, permanent staff of
health service agencies. As the Night Sister concerned met the
conditions, she applied for job-sharing and was employed on that
basis from 15th September, 1988. The Night Sister concerned and
another Night Sister who were job-sharing a post between them
submitted an application to extend their participation in the
job-sharing scheme from 15th September, 1989, i.e. one year after
the original application had been granted. However, at that stage
the Southern Health Board had reviewed the scheme in its
application to supervisory grades and particularly in relation to
those post holders who would be the senior person in charge of
certain aspects of the service in any particular situation as a
number of difficulties had been encountered in relation to
adequate standards of efficiency, continuity and supervision where
supervisory grades were involved. The Board informed the Night
Sister concerned that it was not in a position to extend her
participation in the scheme in her post as Night Sister, but if
she were to revert to her post as Staff Midwife, her application
would be further considered. Since she was not prepared to accept
the Staff Midwife post with a lower promotional status and since
the alternative was to have her contract of employment restored to
its full time work requirement, a condition of employment which
she was unable to fulfill, she was forced to leave her employment
which she did on 11th April, 1990. The Union contended that the
Night Sister concerned was constructively dismissed contrary to
Section 3 of the Employment Equality Act, 1977, in terms of
Section 2 of that Act. On 30th July, 1990, the Union referred the
complaint to the Labour Court for investigation under Section 27
of the Act. The Court held its investigation on 22nd May, 1991,
in Cork.
UNION'S ARGUMENTS:
3. 1. In November, 1988, the Night Sister concerned and another
Night Sister started job sharing. In her case it was for
child rearing purposes. Previously their work requirement
obliged them to attend for seven 12-hour nights on duty and
then take seven nights off. They would each be in sole charge
of the hospital for the time they were on duty. Because of
the rapid turnover of maternity patients they would seldom be
in hospital for more than a week, therefore the issue of
continuity of care does not arise.
2. In 1989, the Board wrote to the Union regarding the
problems it perceived to exist with the scheme claiming that
management "... has been forced to decide that it would not be
possible in the future to grant job-sharing to staff in
supervisory posts." The Union contended that problems which
would inevitably arise should be dealt with on an individual
basis, that night duty was particularly suited to job-sharing
and that in the case of the Night Sister hereconcerned, the
Hospital Matron had assured her that she perceived no
operational problems caused by the application of the scheme
to the Night Sisters over the previous twelve months.
However, the Board rejected the Night Sister's application for
an extension of job-sharing offering her the option of
reverting to full-time employment or taking demotion to
continue job-sharing.
3. In the context of the Unfair Dismissals Act, 1977,
constructive dismissal requires that the Night Sister shows an
entitlement to take such action and that it was reasonable for
her to do so because of the conduct of the Board. In that
regard, consideration must be given to whether the Board is
guilty of conduct which is either a significant breach of
contract or which shows that the Board no longer intends to be
bound by one or more of the essential terms of the contract.
In this case the claimant had a contract of employment which
covered job-sharing and the Board unilaterally changed that
contract so that effectively she had no alternative but to
leave employment, as by this stage she had established a
life-style around a contract of employment in which she
job-shared, or to lose her promotional status. Whilst the
scheme's rules gave the Board the right to require individual
job sharers to resume full-time duty at anytime, it also
stressed that the scheme would be applied flexibly and that
each case would be assessed separately. In adopting a general
veto on job sharing in supervisory posts, irrespective of the
individual merits of each case, the Board ignored its
contractual obligations.
4. The Board applied this veto despite the flexibility which
the scheme provides and despite the arguments, supported by
the Hospital Matron, which showed that there was no
operational problem with the application of the scheme to
Night Sisters in the Hospital. The Board's insistence that
she revert to full-time employment is an unreasonable and
arbitrary act which destroyed the trust and goodwill, which is
part of the employment contract, and which changed the
contract in such a way that made it impossible to continue
working for the Board.
5. For the Night Sister to retain her job, she was required
to work full-time. However, it was not an essential for the
performance of that job as she had performed her job to a
satisfactory level when she was job-sharing. Take-up levels
for job sharing indicate that women in the period of marriage
and family formation tend to seek job-sharing as a means of
combining both roles. Men, on the other hand, do not tend to
see either job-sharing or part-time work as a viable option in
career terms. The Board's blanket veto effectively
discourages women who intend to have children, or who have
young children, from applying for or remaining in
promotional/supervisory grades.
6. The Union contends that the Night Sister concerned was
constructively dismissed by the Board in that her contract of
employment was altered to include the possibility of
job-sharing in 1985, in conformity with the Department of
Health provisions. In 1989, the Board unilaterally altered
these provisions covering her contract by insisting she work
full-time or lose her promotional status. Since she could not
alter her domestic circumstances which required job-sharing
she had no realistic option but to leave the employment of the
Board. The Union believes that she should be compensated for
her losses and the distress caused to her by the Board's
decision.
BOARD'S ARGUMENTS:
4. 1. As part of its review of the job-sharing scheme the Board
had discussions with various staff representatives and senior
and middle managers throughout the Health Board area. As a
result of this review it was decided that it would not be
possible in future to grant job-sharing to supervisory grades.
Those currently job-sharing from senior grades would be
allowed continue until the current approval expires. New
applications or extensions could only be considered if the
senior staff member concerned agreed to revert to a basic
grade post. Participation in the job-sharing scheme is a
facility granted to staff and the decision as to whether a
specific post or category of post may be filled on a
job-sharing basis, is a matter for the employing authority.
The Board must satisfy itself that the continuity of patient
care and standards of efficiency and supervision will not be
affected and that the delivery of the health services will
have to be the priority consideration.
2. At Erinville Hospital there are two Night Sisters working
a week-on, week-off basis. The Night Sister on duty is in
complete charge of the hospital at night and is also
responsible for regular contact and reporting to the Matron.
In a job-sharing situation the Night Sister would work one
week in four. Having agreed to allow job-sharing for this
post for a period, it proved to be unsatisfactory from the
point of view of continuity and general working relationships.
The terms of the scheme provide for the Board to require an
employee to resume full-time duty at any time.
3. The Night Sister concerned was informed that she would not
be allowed continue in a job-sharing capacity beyond 15th
September, 1989. However, it was decided to allow her a
further period to consider her position as the question of a
marriage gratuity was also involved. She was given the option
of resuming full-time duty, to continue job-sharing as a Staff
Midwife or to resign and apply for a marriage gratuity. She
decided to resign from her post on 11th April, 1990, and was
subsequently granted a marriage gratuity.
4. The Board believes that she was treated in a fair and
reasonable manner having regard to the exigencies of the
service and the terms of the job-sharing scheme and wishes to
emphasise that the decision concerning supervisory grades
participating in the scheme applies to all grades of staff
across the Board.
DETERMINATION:
5. The Court has very carefully considered the arguments put
forward by the parties at the hearing. In particular it has
considered the submission made by the Union relating to the
provisions of, and the possible contravention of the Employment
Equality Act, insofar as compliance with the conditions of job
sharing relate to the sex of the worker.
It seems however to the Court that the validity of these points is
fundamentally undermined by the fact that the Boards agreement to
the extension of job sharing to certain grades of staff was
clearly tentative and subject to very specific conditions
regarding their right to request a return to full time duty.
In the case before the Court the Board has argued that quite apart
from its general decision not to extend the job sharing facility
to supervisory posts, in the case of the worker in question she
was in complete charge of the hospital during her hours of duty
and was also responsible for a regular contact and reporting
relationship with the matron.
The Court accepts that in these circumstances the
rsponsibility/reporting elements of the workers duties could not
be adequately carried out in a situation in which she attended
only one week in four.
The Board therefore, having regard to the terms under which
jobs-sharing was extended would seem to have had good reason to
end its operation in the case of this particular post.
Finally it appears to the Court that the worker having accepted
the job sharing terms as offered was fully aware that she could be
required at any time to return to full time duty.
In the circumstances the Court does not consider the Union's case
to be sustained.
~
Signed on behalf of the Labour Court
John O'Connell
______________________
12th November, 1991 Deputy Chairman
B.O'N./J.C.