LCR21845

In July 2005 the Worker was appointed to the position of Acting ICT project manager, (Grade VIII). She was appointed permanently to that level in July 2013. The Worker sought to be given incremental credit to reflect the years that she spent ‘acting’ in the higher grade. The Employer was not agreeable to this, citing the terms of the Haddington Road Agreement, which provided for regularisation on a cost neutral basis. The matter was referred for adjudication by the WRC.

The Adjudication Officer found that the letter given to the Worker to regularise her appointment to the higher grade in July 2013 amounted to an agreement that was unfettered by any express language as implied by the Employer and, therefore, the complaint was held to be well founded and, to compensate for the lack of incremental credit, the Adjudicator recommended compensation of €39,000 to be paid to the Worker.

This Recommendation was appealed by the Employer.

Employer arguments

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  1. The Adjudication Officer was incorrect in stating that there was inconsistency in the regularisation of ‘acting’ posts. These posts were regularised in accordance with the terms of the Haddington Road Agreement, which contained a commitment to regularise these posts no later than 1 October 2013 and provided that there would be no retrospection. Therefore, although the Worker’s position was regularised in advance of a general circular, (17/2013), which issued on 15 October 2013, the circular merely gave effect to the terms of that agreement, which were applied in the Worker’s case in advance of the circular being issued.

  2. The Adjudication Officer erred in referring to an agreement being reached between the Employer and the Worker in July 2013. There was no agreement: the Employer was simply following through on the Haddington Road Agreement which, itself, gave effect to two earlier agreements.

  3. It was long-standing policy of the HSE in the former North East not to grant incremental credit while staff were acting. The rules state specifically that incremental progression will not apply. In response to the Worker’s argument that her line manager was afforded incremental progression, this was due to the unique circumstances of his case that warranted a departure from the rule.

  4. Concession of this claim would generate a significant number of similar claims. Nationally, the regularisation process has appointed in excess of 2,000 employees and the Labour Court in LCR 20814 endorsed the HSE position that the terms provided for in the Haddington Road Agreement on this matter ‘cannot be re-opened before this Court’.

Worker arguments

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  1. The Worker applied for incremental credit on an on-going basis from July 2006 onwards. The Employer acknowledged practices to grant incremental credit within other HSE areas but refused to apply the same locally. However, incremental credit was granted to individuals in the area on a subjective basis, including in the case of the Worker’s line manager.

  2. The effect of not awarding incremental credit to the Worker while ‘acting’ was to reduce the value of the ‘acting’ allowance every year since 2005.

  3. Throughout the period of ‘acting’ the Worker carried out the full range of duties applicable to the higher grade.

  4. The terms of the October 2013 circular do not apply to the Worker, who was regularised in the higher grade prior to it being issued.

  5. The initial adjudication hearing was adjourned to determine if another solution to this problem could be found and discussions took place but the HSE negotiator could not secure support for a solution.

Recommendation

The Court dealt with very similar cases in Appeal Decision No. AD1445, which referenced a previous similar decision in Recommendation LCR20728. In both cases the Court expressed its disapproval of the inconsistencies in approach taken by the HSE to the application of incremental credit. The Court is disappointed and disturbed to note that the HSE has not paid heed to the Court’s views in this regard nor has it taken any obvious action to rectify such inconsistencies, the effect of which is to lead, inevitably, to cases such as this one. It is unsatisfactory for the HSE to expect the Court to uphold rules when it applies them with such inconsistency.

The HSE relies upon the terms of the Haddington Road Agreement to justify its position while it breaches the very terms of that agreement when circumstances suit. It is the responsibility of the HSE to up-hold the collective agreements that it makes with the representatives of its staff. To fail to do so could be regarded as an abdication of this responsibility.

It is understandable that the Worker feels aggrieved at her treatment at the hands of her Employer, in circumstances where her Employer treated her line manager in the opposite fashion.

It is , therefore, with considerable misgivings that the Court feels obliged to do what the HSE has failed to do in upholding normal standards of good industrial relations practice regarding adherence to agreements made. This was set out in the two previous cases referred to above and in LCR 20814.

While the Worker’s position was regularised prior to the relevant circular being issued, the Court finds that the regularisation occurred because of the terms of the Haddington Road Agreement. In the absence of a collective agreement to vary the relevant terms of the Haddington Road Agreement, the terms of the latter must be adhered to, in the view of the Court.

Notwithstanding the Court’s concerns about the entirely unsatisfactory approach of the Employer, the Court is obliged to concur with the Recommendation of LCR 20814 that the terms of the Haddington Road Agreement cannot be re-opened before this Court.

The Court cannot uphold the Recommendation of the Adjudication Officer.

The Adjudication Officer’s Recommendation is over-turned accordingly.

Signed on behalf of the Labour Court



Tom Geraghty
JD______________________
5 December 2018Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to John Deegan, Court Secretary.