FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : WESTDOC LIMITED - AND - IRISH NURSES' AND MIDWIVES' ORGANISATION DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Payment of indemnity insurance for Practice Nurses
BACKGROUND:
2. The HSE funds Westdoc Ltd, a private limited company, to provide emergency GP out of hours medical care through a Section 39 (Health Act 2004) Service Arrangement. Practice Nurses employed part-time by Westdoc Ltd are seeking their indemnity insurance cover be provided by their employer at no cost to them. Prior to 1st March, 2014 the INMO provided the cover but this was withdrawn by their insurance company and are unable to get cover elsewhere at a reasonable cost. INMO suggest that in fact the cover is unnecessary while the Employer has laid-off the Nurses until similar replacement cover is confirmed .
UNION'S ARGUMENTS:
3. 1.There is no requirement in Irish law for Practice Nurses who are employees to provide their own medical malpractice insurance.
2. The Union is seeking compensation for loss of earnings as a result of being prevented from attending work.
COMPANY'S ARGUMENTS:
4. 1.The Practice Nurses' work contract clearly states that the provision of their Professional Indemnity insurance is solely their own responsibility.
2. It is not the responsibility of the Company to provide cover, up until March 2014 the INMO provided the insurance at no cost to the Nurses, when suddenly and without notice it withdrew the cover.
RECOMMENDATION:
This case has raised wide ranging and important questions concerning the respective liability in tort of the Employer, Doctors and Nurses in the event of an action for professional negligence being taken by a patient of the service provided by the Employer. These are matters which are outside the Court’s field of expertise. Rather, the Court's concern in this case is to find a reasonable industrial relations basis upon which this dispute should be resolved.
The Court accepts that there is no reality in the suggestion that Nurses associated with this dispute should provide their own professional liability insurance. It is equally unreal to imagine that the Employer could cover the cost of this insurance, although it is noted that the Union are not suggesting that it should do so. While the Employer has argued that the Union should revert to providing this insurance that too is not an option in the current circumstances.
In the Court’s view there are only two viable options now available. The Employer could decide that it no longer intends to use the services of Practice Nurses and deal with the consequences that flow from that decision. The only other option is for the Employer to accept that the Practice Nurses cannot obtain independent insurance cover and allow them to continue in their employment on that basis. That would necessarily involve the Employer agreeing to delete the clause in the Nurse’s contract requiring them to provide insurance.
The Court recommends that the parties should have urgent discussions focused exclusively on these two options. The Court believes that those discussions could take place and be concluded in a matter of days. While they are taking place the Claimants should be returned to the payroll.
In all the circumstances of this case the Court does not recommend concession of the Union’s claim for retrospective compensation.
Signed on behalf of the Labour Court
Kevin Duffy
21st May, 2014______________________
JFChairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.