Complainant

Respondent

Anonymised Parties

A Social Care Practitioner

A Nursing Home

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00020895-001

30/07/2018

The complainant, a Social Care Practitioner in a nursing home, asserts that the respondent has breached the Terms of Employment (Information) Act by assigning her care assistant duties; the respondent denies the claim.

The complainant outlined that she started working for the respondent on the 21st March 2017 at a time when SCPs were first recruited. She and a colleague were initially recruited and because the nursing home was short staffed, they carried out personal care duties and could not do the social care side of the role. The difference between the roles is that the SCP devises care plans and activities with the activities coordinator. They brought this to the manager’s attention, who said that they would continue doing these roles until more care staff were taken on.

The complainant outlined that her performance reviews stated she had not taken the initiative to do the SCP side of the role. The job description states that between 11.30 and 12.45 and 2 to 5, she should be working on activities on a one-to-one basis or via an activity programme. There was also to be social activities between 5.45 and 6.45.

The complainant outlined that she is not still really in a position to carry out the role. In January 2018, she was placed in the upstairs section of the nursing home where there are two care staff members with 18 residents. She cannot leave this one staff member on her own. The complainant’s manager said that she was going to sort this out but later reported that Head Office would not allocate more caring hours. She was the only SCP working at the moment.

In regard to finding time, the complainant assumed that she would be doing the timetable set out in the 23rd March 2017 memo. She referred to her current work schedule. She could not develop care plans and life story books within the time. The other SCP person left, and her role was not filled. The complainant’s understanding was that the SCP role would cover all residents. Some healthcare assistants would look to her to lead while others are more senior and less likely to. She completed a handful of life story books and two care plans.

The respondent submitted that the complainant was employed as a Social Care Practitioner and part of this role involves direct personal care of residents. It also involves enhanced responsibilities around care planning, quality of life and social engagement as well as consultation with residents and their families. The respondent employs 16 SCPs and they are paid at a higher rate to healthcare assistants. It states that it has sought to encourage the complainant in being more proactive in developing the SCP role.

The respondent outlined that the upstairs residents have cognitive impairment, so the SCP role is needed there. The expectation is that when the complainant is upstairs, she is not required downstairs. This is an overlap role between a nurse and a healthcare assistant. The SCP’s across the organisation have not met as a group.

The complainant was solely performing healthcare assistant roles and they needed to find time. After the morning caring work is completed, there should be time for the SCP work. Their expectation was that the complainant would lead the service with other healthcare assistants. The second SCP role has not been filled once the colleague left but they planned to fill this role.

Commenting on the schedule presented by the complainant, the respondent said that there were other opportunities to develop the role. While the time flow is correct, there were opportunities for the complainant to take a lead. There are plenty of ways, for example to develop interests for groups of residents. One could get the resident involved in their care and chat to them.

The SCP role is now focussed upstairs and improved the quality of life of residents, who are more dependent. This is an evolving role and the respondent had not changed anything. The role carried out by the complainant is the role envisaged in the contract.

The complainant commenced working in the SCP role on the 21st March 2018. This is a new role within the respondent network of nursing homes and is to “promote and maintain the highest quality of social support and care to residents.” It includes advocating for residents and protecting their rights. The respondent initially employed two SCP’s in this nursing home, but the complainant’s colleague resigned and not replaced as of the adjudication. While the respondent has employed SCPs in other nursing homes, they have not met as a group regarding their new role.

The complainant asserts that the respondent breached section 5 of the Terms of Employment (Information) Act. She states that she worked the duties of a care assistant and has not been able to do the broader SCP role for residents. The respondent denies the claim and states that the complainant should find time to develop the SCP role with residents, in particular those with cognitive impairment.

The employment contract states “The position is that of Social Care Practitioner. In that capacity, you will be expected to perform the duties and responsibilities outlined to you and which may be revised from time to time…” The job description includes a list of duties and responsibilities, referable to all residents of the nursing home.

The Terms of Employment (Information) Act transposes into Irish law EU Directive 91/533/EEC. It provides that the employer is required to inform employees of the conditions of their employment, for example “the title of the job or nature of the work for which the employee is employed” [section 3(1)(d) of the Act]. Section 5 requires the employer to inform the employee in writing whenever a change is made or occurs in any of the particulars of employment.

It is clear from the evidence, in particular the time sheet, that the complainant is primarily doing a care assistant role and has not been able to expand the SCP role because of insufficient time and not working with all residents. This is not in accordance with the statement provided to the complainant at the start of her employment. The duties assigned to her represent a change in the nature of her work, of which she has not been notified. The complaint is, therefore, well founded.

In assessing redress, it is beyond the scope of section 7 of the Terms of Employment (Information) Act to require the respondent to assign the complainant SCP duties. I, therefore, award redress of €3,000, pursuant to section 7(2)(d) of the Act.

CA-00020895-001

I find that the complaint of a contravention of the Terms of Employment (Information) Act is well founded and I award redress of €3,000.

Terms of Employment (Information) Act

Notification of change / section 5