Employee

Employer

Anonymised Parties

A Nurse Midwife

A Health Services Provider

Representatives

The Irish Nurses and Midwives Organisation

The Employer’s Employee Relations Manager

Act

Dispute Reference No.

Date of Receipt

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

CA-00040694-001

30/10/2020

The employee has been a staff midwife in one of the health service’s hospitals since 2005.  She went on a career break in 2013 and returned in 2015.  She has submitted two issues for consideration under section 13 of the Industrial Relations Act 1969.  The first is her wish to work a rota based on seven nights on and seven nights off.  The second is her grievance over the fact that she used up two weeks of annual leave when her employer failed to provide her with alternative duties so that she could recover from dermatitis.

Issue 1:  Request to Work Seven Nights On

Between 2005 and 2013, the employee worked a rota of 13 shifts each month, including seven consecutive nights on.  The remaining six shifts were worked as day shifts and were not necessarily consecutive.  When she returned to the hospital where she works following her career break and a period as an agency worker, the seven nights on rota had been discontinued. 

On behalf of this employee, Mr Sheehan said that she has gone through a very difficult time over the past few years and in 2019, her husband was diagnosed with cancer.  As a result of her husband’s illness, the employee changed her mind about resigning from the hospital to take up a new job she was offered.  Mr Sheehan said that she needs the regularity of the seven nights on arrangement so that she can attend hospital appointments with her husband.  The employee said that another reason for requesting this shift is that she likes to provide continuous care for patients.  She finds the adjustment from night working to day working difficult and easier to manage with a straight seven night shift.  This rota is also financially more beneficial than the rota of broken up shifts because of the inclusion of Saturdays and Sundays.  Mr Sheehan said that the difference in annual earnings is around €3,600.

The INMO negotiated to retain the old arrangement for two of the employee’s colleagues and they continue to work the seven nights on rota.

Setting out the employee’s case, Mr Sheehan said that the hospital is within its rights to change the roster, but he said, the seven nights on roster is not illegal.  He argued that the hospital has a duty of care to this employee, and he wants them to look again at her request and to give some consideration to her particular circumstances.  The employee said that she would like the seven nights on arrangement to be her normal roster and she doesn’t want to keep asking for this on an exceptional basis.

Issue 2:  Occupational Illness

On March 2nd 2020, the employee was diagnosed with dermatitis by the employer’s occupational health physician.  She was advised how to manage the condition with the use of emollients instead of soap and by wearing large sized gloves.  The doctor proposed that the employee do non-clinical duties for two weeks to allow her skin to recover and she asked to be assigned to alternative duties.  No alternative role was identified by the employer.  The employee had used up her paid sick leave and she took two weeks holidays.  Because she had used up her annual leave, she had to take these two weeks from the following year’s annual leave entitlement.

The employee argues that there is no evidence that her employer looked for alternative work for her while she was recovering from dermatitis.  She said that, six weeks after she returned to work, another employee was assigned to a non-clinical role updating policies.  She is convinced that, with some effort, a role could have been found for her and she could have worked from home.

Issue 1:  Request to Work Seven Nights On

For the employer, the ER manager said that the provisions of section 16 of the Organisation of Working Time Act 1997 resulted in changes to night work arrangements.  This change was supported by the evidence of the impact of night work on the health of employees.  Permanent night working is now a thing of the past and even the seven nights on working pattern has not been a feature in maternity hospitals for seven or eight years.  To provide for adequate rest, the rota is now based on split day and night shifts.

The employee concerned with this dispute is seeking a change in the rota to permit her to work seven nights on followed by seven nights off.  The ER manager said that nurses seeking this roster may be accommodated in exceptional circumstances and for personal reasons, but this rota cannot be a permanent arrangement.  When she asked to do this roster for family and medical reasons, the employee has been facilitated and the ER manager said that there is no reason why this won’t happen in the future.  However, it will not always be possible to agree to such a request because of the difficulty of finding someone to work the opposite shift.

Referring to the arrangement with the INMO concerning two employees who work seven nights on, the ER manager said that this arrangement was agreed on a “red circled” basis, which means that it will not apply to any other employee.  One of these is a nursery nurse and the other has worked a specific rota for 18 years.

The ER manager said that this employee did not work a seven nights on rota in 2015, 2016 or 2017.  In 2018 she worked two seven night rotas and in 2019, she did four seven night rotas.  The employee clarified that, in 2019, she did five seven night rotas and that she was out on sick leave for a good proportion of that year.

Concluding the employer’s submission on this matter, the ER manager said that applying a week of nights to one nurse means that night duty is reduced for others.  It leads to inflexible rosters and low morale for those who want to work more nights.  He said that the directors of nursing have no input into the rostering arrangements in the hospital and that the issue of rotas is a human resources and not a clinical matter.  That said, he said that the director of nursing will facilitate a request for seven nights on for a particular reason, but not as a permanent arrangement.

Issue 2:  Occupational Illness

Responding to the employee’s grievance concerning her non-assignment to alternative duties, the change manager said they looked outside the maternity unit for a different job, but that nothing productive could be found.  She said that, even in the unit that the employee suggested she could work, there is a requirement for constant hand-washing.  The employee needed to be in a non-clinical area and to keep her hands dry as much as possible and this was not feasible in the hospital environment.  Some employees were re-deployed under Covid-19 rules, but the issue facing this employee was not Covid-related. 

Issue 1:  Request to Work Seven Nights On

I have listened to the employee’s predicament concerning her husband’s illness and her wish to have a fixed monthly seven nights on rota.  What she is seeking is an arrangement that no longer operates in the hospital where she works, although it may still be a feature in other hospitals.  From my assessment of the situation, the seven nights on rota has been discontinued for good reasons; it is an arduous shift in a physically- and mentally-demanding environment, and, as employees get older, it must be particularly hard.  The employee here is not disputing the right of the hospital to change the rota; however, for personal reasons, she would prefer the previous arrangement.

What the employee is seeking is a “red circled” arrangement comparable to the two nurses that she referred to as being subject to a special agreement between the hospital and the INMO.  Because of the difficulty getting cover for the opposite shift, and, to spread the burden and the benefits equally, the employer is not open to another such arrangement.

As a possible resolution of this issue, the hospital is willing to consider the employee’s request to work the seven nights on arrangement on occasions, but they offer no guarantee of concession.

Each of us in our various workplaces must accept arrangements that we find onerous, whether that is start and finish times, open plan working, working with certain people or demands for work to be done in a particular way.  In most organisations, work is arranged so that it can be done efficiently, economically and with fairness to the people who have to carry it out and I am satisfied that this is the case in this hospital.  I understand that this employee would like to work a different rostering arrangement; however, this is not feasible from an organisational perspective, not is it desirable, from an industrial relations perspective, to make concessions that go against what most employees consider to be an acceptable work practice.

Having considered this matter, it seems to me that concession of this claim would have the effect of reverting to an outdated and unhealthy working arrangement from which the majority of employees have moved on.  It would result in the employee earning slightly more than her colleagues in weekend premiums and also, of others having to work more days than nights, which may not suit their particular circumstances.

I am mindful of the employee’s desire to have a fixed arrangement of seven nights on each month, so that she can support her husband during her time off.  It is my view however, that the current arrangement of 13 shifts each month, providing as it does 17 days off, provides the same amount of time off as the seven nights on shift.  The difference is the fact that there will not be seven consecutive days off; but I do not consider this to be an impediment to the employee’s ability to attend hospital appointments and support her husband.

Issue 2:  Occupational Illness

In some employments, a person with an occupational illness would be able to take time off and to avail of paid sick leave.  As a public sector employee, the employee was entitled to paid sick leave, but in March 2020, she had used the full amount of paid leave to which she was entitled at that time.  If she had taken sick leave to recover from dermatitis, she would not have been paid.  She had also used up all her holidays and, for this reason, she was permitted to take annual leave from her 2020/2021 entitlement.  Her grievance arises from the employer’s failure to assign her to a role that did not involve continual hand-washing.  In effect, this could only have been facilitated by identifying a job that she could do from home.   The employer’s case is that they could not find a productive job that the employee could do from home for two weeks.

I accept the employer’s position that there were constraints around what the employee could work on from home.  Due to the impact of Covid 19, some nurses were absent and carrying out administrative tasks at home, and there must have been a limit to the availability of this kind of work.  That said, this employee contracted an occupational illness, and it is my view that some creativity might have been applied to the possibility of taking paid sick leave.

Issue 1:  Request to Work Seven Nights On

I note the employer’s willingness to facilitate the employee in circumstances where she needs to work seven nights on.  I recommend that the nurse manager in the unit where she works considers each request on an ongoing basis, with reason, and with regard to the employer’s duty of care for this employee.

Issue 2:  Occupational Illness

I recommend that consideration be given to assuming that the employee has used up two weeks’ sick leave from her forthcoming entitlement, so that her next entitlement to three months’ full pay is reduced by two weeks.  I recommend then that the employee’s 2020/2021 annual leave entitlement is not affected by her absence of two weeks in March 2020.

Grievance, annual leave, seven night roster