Complainant

Respondent

Anonymised Parties

A Nurse

A Hospital

Representatives

Irish Nurses and Midwives Organisation

IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00035543-001

01/04/2020

In 2014 the complainant left employment in Ireland as a Health Care Assistant (HCA) to go to the UK to train as a nurse.

Her training in the UK lasted up to November 2017.

She continued to work as a HCA on a casual basis in Ireland but in October 2017 began work as a Staff Nurse in in London.

She left that employment in November 2018 to return to Ireland.

In November 2018 she applied for a Nursing position at a Dublin Hospital and was appointed in February 2019 on the Staff Nurse pay scale.

She was given incremental credit in respect of her UK staff nurse experience I.e., appointed on to the 2nd point of this scale with an incremental credit date of January 11, 2020.

She is claiming assimilation based on her previous employment as a HCA to the fifth point of the nursing scale.

The complainant became a registered nurse following employment as a HCA but continues to be paid a lower level than she was when she was on that (HCA) grade.

There is no provision in the regulations that limits the employer from taking into account the complainant’s existing pay within the service or assimilating her to the nearest monetary point of the staff nurse scale.

If she had remained in the service and continued to work as a HCA would now be earning €36,800; which is more than her current salary.

The argument that she is not eligible to have previous service applied because she worked as a nurse in the UK for a period of fifty-six weeks after she qualified is not well-founded.

There is nothing in the regulations to prevent this.

The relevant regulations confirm that employees who undergo the nursing degree programme, should on appointment as Staff Nurses be assimilated to the nearest monetary point of the Staff Nurse scale, based on their existing pay.

We are seeking to have the complainant placed on the appropriate point of the salary scale, taking into account the content of the above regulations.

The Complainant is alleging that she is not on the correct point of the Staff Nurse pay scale. 

It is claimed that as she was previously employed in the Irish health service as a Health Care Assistant (HCA), she should have received credit for this employment when determining the correct point of the Staff Nurse pay scale when appointed to that position in February 2019.

This claim is rejected by the respondent. The Complainant had been employed on a casual basis in an Irish Hospital.

She was appointed to a nursing position in February 2019 on the Staff Nurse pay scale and given incremental credit in respect of her UK staff nurse experience i.e., appointed on to the 2nd point of this scale with an incremental credit date of January 11, 2020.

She is claiming that she should have been appointed at the 5th point of the Staff Nurse pay scale.

The Complainant was assimilated on to the Enhanced Nurse salary scale on January 11, 2020.

As she left the Irish health service where she worked as a Health Care Assistant to commence employment as a nurse in the UK she was not assimilated directly from the Health Care Assistant role to a nursing role in Ireland.

Therefore, the regulations referred to in the WRC Complaint Form are not relevant in this particular case. 

The regulations referred to by the Complainant in support of her case state that they apply to employees sponsored or self-funded to undergo the Nursing Degree Programme.

In relation to pay the regulations which relates to those sponsored by a Public Health Service

Employer they state;

 “it has been agreed that employees who were sponsored to undergo the nursing degree programme should, on appointment as a Staff Nurse be assimilated on the nearest monetary point of the Staff Nurse salary scale based on their existing salary.”

Clearly this refers to someone currently paid as an employee in the Irish health service. The regulations refer to the pay being based “on their existing salary”.

At the time the Complainant commenced employment with the respondent she was not an employee within the Irish health service. Neither was she employed as a Health Care Assistant. She was employed as a Staff Nurse within the UK health service.

In summary, the Complainant did not move from a Health Care Assistant role to a Staff Nurse position in Ireland but moved from a Staff Nurse position in the UK to a Staff Nurse position in Ireland.

As a result, the regulations referred to by the Union do not apply in this case. The Regulations deal with an individual moving directly from Health Care Assistant to Staff Nurse within the Irish Health Service. This is not what happened in the Complainant’s case.

It is very clear in the regulations that the pay one moves on to as a Staff Nurse is based on one’s existing salary.

Sponsored staff would clearly have to have remained in the Irish health service to benefit from service as an employee. It would clearly be unfair for an individual who self-funded to be treated more favorably.

In fact, there is a clear link between the schemes covered by the relevant regulations.

If this case was conceded it would mean that an individual could leave the Irish health care service for several years and expect to get credit for service as a Health Care Assistant when she worked in Ireland when returning to the Irish health service as a Staff Nurse.

For all of the above reasons the Hospital is requesting that the Adjudicator reject this claim.

The facts are not in dispute.

The complainant, initially employed as a HCA in Dublin, went to the UK to qualify as a nurse and did so; becoming part of a long and rich tradition of nurses who have qualified by this route over many years. Her course concluded in September 2017 and she bore the costs of it herself.

In the meantime, she continued to work as a HCA up to November 2017, some weeks after she concluded her nurse training. Her salary as a HCA was €33,906.

Following her registration as a nurse, she then took up employment as a nurse, but in the UK for the next year or so, up to November 2018 and returned to work as a nurse in Ireland starting on February 11th, 2019.

On her return she was assimilated on to the second point of the nursing pay scale which gave her a salary some €2,796 below her previous salary as a HCA. She says that she should be on the fifth point as this is the next highest point above her HCA pay rate.

The first issue is obviously what is required by the applicable regulations.

This is covered in two regulations, which have the same effect and exist to provide for the separate situations in which a student funds themselves, and the other in which they do not,

“it has been agreed that employees who were sponsored to undergo the nursing degree programme should, on appointment as a Staff Nurse be assimilated on the nearest monetary point of the Staff Nurse salary scale based on their existing salary.”

The respondent asserted that this refers exclusively to someone currently paid as an employee in the Irish Health service.

It further argues that the interruption in the complainant’s career trajectory by her period of post-registration employment in the UK is a disqualifying factor and that the regulations ‘deal with an individual moving directly from HCA to staff nurse within the Irish health service’.

The complainant says that there is no provision within the regulation to limit the employer taking into account the complainant’s existing service and notes that had she remained on the service that her salary would be higher.

However, this is not the case; it is the very interpretation of ‘existing salary’ that is the problem, in that the year’s gap renders the word ‘existing’ inapplicable, in the respondent’s submission, and indeed on any literal reading of the regulation.

Unfortunately, this results in an anomaly in that, had the complainant not taken up her placement as a nurse in the UK she would be better off financially (and the respondent and its clients would have been at the loss of this valuable, postgraduate experience).

In what might be the more general situation, a person would undertake nurse training while continuing to work in some other capacity in the health service. Then on conclusion of nurse training they would be assimilated from that previous position as provided for above.

This falls very clearly within the terms of the regulation and it makes perfect sense to have such a provision.

It was extended in what was described as ‘a positive initiative’ to those who paid for their own training in August 2017

On an ordinary reading of this the complainant falls outside a strict interpretation of the requirement in that she spent about a year working in the UK.

Her claim then becomes that she should be assimilated on the basis of her then existing salary in November 2017. If the complainant had not undertaken the period of employment in the UK and had moved straight from her HCA position to that of a staff nurse she would have been €2,796 per annum better off.

On this basis, it is clear what the regulation says, and the respondent has the better part of this argument.

That said, what is the logic of this position?

Why should a person in the complainant’s circumstances be placed at such a disadvantage over a colleague who moved directly from a HCA position to that of a nurse (or indeed herself had she not undertaken the position in the UK).

More specifically was such an outcome intended by the authors of the regulation (which was probably decided following involvement by the nursing trade unions).

It seems likely that, in drafting the regulation the possibility of the circumstances of this case were simply not in contemplation, and the focus of the authors was simply to address the position of people directly moving from one grade in the service to another without interruption.

It is doubtful that there was any intention to disadvantage a person in the complainant’s situation, which was probably not even on the agenda.

But what about a person who took a shorter break, say a couple of months; does this breach the continuity required to bring her within the definition of an ‘existing salary’? On the basis of the respondent’s argument would a week, or two week’s break put them outside the regulation?

This highlights the inequity of the current regulation.

There is a good argument to be made for a more flexible interpretation of ‘existing’ to embrace ‘then existing’ or last actual salary while in the health service, subject to some sensible conditions.

The good will apparent in the decision to extend the assimilation principles to those who paid for their own training (the ‘positive initiative’) may represent an acknowledgement that a degree of generosity is justified in order to encourage experienced health service workers to undertake nurse training.

That said, I accept it is unlikely that even if the issue had been before them the parties (I am assuming there was at least a consultation process) would have left any eligibility now provided for by ‘existing salary’ open-ended.

Nonetheless, there is an equitable case for extending the spirit of the provision beyond a definition of existing that requires an uninterrupted, seamless move from one grade to the other.

For a number of reasons which I explain below, I can go no further on this than recommend to the parties that they seek a review of this anomaly with my strong recommendation that the inequity in the current regulation be remedied.

Such a remedy could include conditions relating to the length of any such absence between working in the health service here, the nature of the work undertaken during the break being relevant to the position in question and such other conditions as may be felt necessary.

The respondent expressed concern about a person leaving for ‘a number of years’ and then returning. It would be relatively easy to introduce a time limit on the duration (and nature) of the absence.

I would go so far as to say that any such limits should be sufficiently flexible and fair as to bring the current complainant within their ambit on the specific facts of her undertaking nursing work and the relative proximity in time of her return. (She returned to Ireland less than a year after she left).

The difficulty that arises in providing a direct remedy is as follows.

The jurisdiction of the adjudication service, and before that the Rights Commissioner service under this legislation is, on the one hand, sufficiently wide to assist disputants to find innovative resolutions of their disputes.

Just under ten per cent of all cases referred to the WRC are heard under this legislation.

However, on the other hand, in many respects it is also constrained.

The primary constraint relates to the fact that the jurisdiction is confined to the resolution of individual disputes and rights issues and does not extend to issues related to conditions of employment for groups of workers.

This case and any recommendation which might be made (and bear in mind it is only a recommendation) would have wider implications for other people beyond the current complainant (and respondent) for the reason that the governing regulation has national application in the health service.

The respondent is a large employer and operates within a highly regulated environment for purposes of pay and conditions of employment and the change that is required should be pursued at the source from which the current regulation emanated.

It is therefore a matter initially for the collective bargaining structures and for decision at the appropriate level of public service management.

To the extent set out here I can agree that the complaints merit a remedy for the complainant along the lines she has sought. However, for the reasons explained it is not open to an adjudicator to provide a specific remedy beyond that set out in the Recommendation.

I summarise my conclusions as follows.

There is substantial equitable merit in the complainant’s case that her assimilation should be brought within the regulation referred to.

However, apart from the jurisdictional issue referred to, to make such a recommendation would involve applying an interpretation of the existing regulation that would stretch it beyond its ordinary and intended meaning.

Therefore, I must accept that this is a matter for the collective bargaining structures available to the nursing unions and the health service management. I recommend that the matter be referred there and concluded within three months of the referral.

I recommend to those parties that the current provision for assimilation be extended to take a account of a period of interrupted service where that period has involved work relevant and of value to a potential employer.

I acknowledge the validity of the complaint to the extent that the complainant has demonstrated a manifest inequity vis a vis her co-workers in respect of her assimilation and its impact on her conditions of employment.

In my opinion, it arises from an unintended anomaly and oversight in the 2008 and 2017 regulations which should be corrected without delay to remove that anomaly.

I recommend that the complainant, (through her trade union) immediately raise the matter in the proper industrial relations channels on the basis of this recommendation that the anomaly should be resolved without delay.

That resolution might involve the extension of the spirit of the relevant regulation to apply to those who formerly worked in the service within a reasonable timeframe of their return and whose absence was for the purpose of gaining experience relevant to their intended employment in Ireland.

The process should conclude within three months of the referral of the claim by the union.

Conditions of employment. IR Act jurisdiction.