Complainant

Respondent

Anonymised Parties

A Healthcare Assistant

A provider of healthcare staff

Representatives

Warren Parkes Solicitors

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00021414-001

28/08/2018

The complainant commenced working for the respondent as a healthcare assistant from 1 June 2008. The respondent is an agency provider of healthcare staff and assigned the complainant to work in hospitals. The complainant was not allocated work from 6 April 2018 while a hospital carried out a Trust in Care investigation. The respondent informed the complainant two weeks before the adjudication that she was restored to their app. The complainant seeks recovery of unpaid wages and the respondent denies the claim.

The complainant stated that she was suspended on 6 April 2018 and had not been given a return date. She was not assigned work elsewhere while the trust-in-care investigation was pending. She was told that she could not be assigned work until her name was cleared. Her status was “inactive” and she could not use the respondent’s app. She was told not to use the word “suspension” and was left in a limbo. The complainant became ill on 18 July 2018 and this was attributable to a stress disorder.

The complainant believed that the investigation had recently been completed. She should have been restored “active” at an earlier point. The complainant was off her certs in the week of the adjudication and has not made herself available as she needed to speak to her doctor first.

It was not satisfactory for the respondent to wait for the hospital to complete the investigation. The only immunity for an agency was under the Unfair Dismissal Act and not the Payment of Wages Act. The duty cannot be foisted onto the complainant. She was told that she was not suspended but there was no attempt to find out what happened and to see if she could be employed elsewhere. The complainant was in limbo and had to use up her annual leave.

The complainant submitted that an employment agency could not say that a worker cannot work until her name is cleared. She had an 11 year blemish-free record but was not able to work between April and October and was left without pay. She could not go to another agency because of the circumstances.

The complainant was bounced around by the respondent agency. The agency should have known the complainant’s working hours for purposes of the Organisation of Working Time Act. It was the hospital who suspended the complainant from their premises but the agency did not assign her elsewhere. She was only offered work late in the day (in October 2018), even though the investigation had not yet ended.

It was only after this claim was lodged with the Workplace Relations Commission that there was forward momentum to resolve the matter. Despite the email of 5 October, there were still monies owed to the complainant. The offer of a return to work took place in advance of the complainant being cleared and because of this WRC complaint. She could have been offered work not related to healthcare.

The respondent outlined that two weeks before the adjudication, the hospital confirmed that the investigation had concluded that the complainant would not be formally reprimanded. The hospital recommended that the complainant undergo further training.

The respondent outlined that when a complaint relates to a patient, it is dealt with via the HSE’s Trust in Care policy. The onus was on the client hospital to come back with recommendations. The respondent could not place the complainant on another site because of the serious nature of the allegation. A change in management in the hospital contributed to the delay. When the complaint relates to a patient, the agency cannot investigate it and relies on the client hospital to gather information. When a staff member is not required, they are not paid, per the contract provisions.

The respondent reached out regarding the state of the play of the investigation, i.e. before the WRC complaint was made. A hospital will not take on an employee under investigation. The respondent pushed the hospital for a decision. They had to give the hospital time to investigate and had to let the investigation take its course. The respondent left messages on 22 August regarding three investigations. Two weeks before this adjudication, the respondent was informed that another agency worker was cleared, and the hospital gave a verbal update regarding the complainant. The respondent relayed this to the complainant and she was placed as “active” for other sites.

The respondent submitted that the complainant’s role was as a healthcare assistant and this involves dealing with patients. She was unfit for work after 18 July so cannot recover from that date. There was no sick pay scheme.

CA-00021414-001

This is a complaint pursuant to the Payment of Wages Act for unpaid wages of €13,065 and outstanding holiday pay of €983.25. The complainant was assigned to work at a national hospital when a family member of a patient made a complaint to the hospital regarding the complainant. This was investigated by the hospital per the HSE Trust in Care policy. The respondent agency did not assign the complainant any other work from 6 April 2018. The complainant refers to this as “suspension” and whatever the label, she was not assigned work anywhere. This continued until shortly before the adjudication when the complainant was restored as ‘active’ on the respondent’s app. The respondent states that the hospital made no finding against the complainant other than the provision of additional training.

The respondent terms and conditions provide “you will be engaged as an agency Healthcare Assistant to provide services to such Client Organisations of [the respondent], on an as needs and as required basis”; “There is no obligation on you to accept the work offered. You have the right to refuse or accept the hours offered to you. The refusal of hours on your behalf will have no negative consequence”; “You are not bound exclusively to [the respondent], however if an agency shift arises it will only be offered to agency staff who have put themselves ‘on call’ and are therefore considered by [the respondent] to be available”; “[The respondent] gives no guarantee that hours will be offered to you on a weekly basis”; “if you agree to hours of work you will be required to attend work for those hours”. The terms and conditions provide that the respondent can take action against the employee for disciplinary matters, for example conduct or performance.

The complainant earned about €670 per week in her role as healthcare assistant. Her 2018 pay slips record that she worked mainly in the tertiary hospital that carried out the Trust in Care investigation. She also worked in another hospital, for example on 5, 12 and 13 February 2018.

The Trust in Care policy is national policy to assist in preventing and addressing abuse in the healthcare context. The policy provides that an allegation of abuse will be subject to preliminary screening. The allegation proceeds to full investigation if it is determined that the alleged abuse could have occurred. This is a low threshold. It provides for protective measures pending an investigation. It provides that putting a staff member off duty with pay should be done in exceptional circumstances and not as a disciplinary sanction. It provides that the investigation should be expeditious.

While the Trust in Care policy envisages that suspension would be used in exceptional circumstances and would be paid, the complainant was not assigned work for some months. The respondent did not make the decision to investigate the Trust in Care complaint, although did not assign the complainant to other hospitals pending the investigation. The Trust in Care policy does not prevent the complainant being assigned elsewhere, for example to the other hospital where she had an established track record. This is obviously unsatisfactory as the complainant, an experienced and longstanding healthcare assistant, was not able to work anywhere.

This case pre-dates the Employment (Miscellaneous Provisions) Act, 2018, which now prohibits so-called zero hours contracts, including ones where the employee is provided hours on an ‘as required’ basis.

In Sullivan v Department of Education [1998] E.L.R. 217, the EAT held that a deduction includes any amount payable to an employee, i.e. sums to which an employee is properly entitled. The relevant part of the decision states:

“There is no specific definition of a deduction in the Act; guidance can be taken from the definition of ‘wages’ in section 1 of the Act: ‘Any sums payable to the employee in connection with his employment, including: …’

We consider the word ‘payable’ to be significant. Whereby [the employer] contended that there is no deduction where an employee continues to receive the same amount (and the same composition) of wages from the outset, the Tribunal considers that if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act. We take ‘payable’ to mean properly payable. The definition of ‘wages’ goes on to give examples of types of payments which can amount to ‘wages’ and states that the payments can amount to wages ‘where payable under [his] contract of employment or otherwise…’. Although in our view it is not simply a matter of what might have been agreed or arranged or indeed paid from the outset, but in the view of the Tribunal, all sums to which an employee is properly entitled.” 

The complainant was certified as sick from 18 July 2018 and this continued up to the day of the adjudication hearing. Even if this sickness was attributable to not being assigned work, this is not a matter for the Payment of Wages Act. The complainant had no statutory or contractual right to sick pay, so redress cannot be awarded for this period.

In respect of the period from 6 April to 18 July 2018 (a period of 15 weeks), I find that the wages were properly payable to the complainant. I note section 6 of the Protection of Employees (Temporary Agency Work) Act provides the same working conditions for an agency employee. I note that this emanates from European Union law. I note that an employee of the hirer would be entitled to be paid pending the investigation. I note that, in this period, the complainant was available to work and could have returned to work at the other prominent hospital, where she had an established track record. She was an employee with 11 years blemish-free service. There was no prohibition in her contract or in national policy for such a placement. It follows that the pay for the period of 6 April to 18 July 2018 was properly payable. This is an amount of €10,050. I make no award in respect of holiday pay as the complainant availed of annual leave. There is no question of double recovery as the complainant has exhausted this annual and public holiday leave.

CA-00021414-001

I decide that the complaint of a contravention of the Payment of Wages Act is well founded and the respondent shall pay to the complainant redress of €10,050, less any deductions due in tax.

Payment of Wages Act / properly payable