Worker

Employer

Anonymised Parties

A Psychiatric Nurse

A Healthcare Provider

Representatives

Niall O Sullivan Psychiatric Nurses Association (PNA)

Aisling McDevitt  of 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

IR - SC - 00000390

21/06/2022

The Worker is a psychiatric nurse who qualified as a Registered Nurse in Intellectual Disability (RNID) in 2007 and began work with the Employer that same year. The Employer is a healthcare provider which specialises in the provision of care to people with intellectual disabilities.

In 2010 the Worker set about undertaking a Higher Diploma in Intellectual Disabilities to develop and enhance his skills and improve the service provided to service users.

The Employer funded this diploma and paid study days.

The Worker graduated from University of Limerick in 2011 with a Higher Diploma in Intellectual Disabilities.

Since completing the Diploma the Worker has mainly worked more in the areas of managing challenging behaviour and diabetes.

The Worker is seeking backdated payment of a special qualification allowance (“SQA”) he argues he is entitled to as a result of his diploma and work.

The Employer opposes this.

The Worker has an important role in the running of the area he is currently deployed in and is a leading member of a team that regularly develops, updates and reviews positive behaviour guidelines, risk assessments, audits and is involved in various service improvement initiatives and projects for the organisation because of the expertise he gained from completing the Post Graduate Diploma in Intellectual Disability Nursing.

The area of diabetes nursing and diabetes management is a growing area of need across the organisation. The Worker’s expertise is utilised when he leads out clinically in the care of a young gentleman in the service with diabetes between his day program and residential setting, this involves reviewing and updating his entire diabetes policy, training staff, and helping the individual himself on the current up to date approach of care. More recently The Worker has provided consultations to support staff to develop local protocols and have before training department.

In 2020 the Worker became aware he was not in receipt of the qualification allowance.

On 20th October 2020 the Worker enquired with the Employer’s HR department to see if he ought to be in receipt of the qualification allowance. Following this there was engagement regarding his course and its recognition by the NMBI.

In early 2021 the Employer’s Head of HR informed the Worker that the additional qualification in Intellectual Disability did not qualify for the qualification allowance. In the same email an example of “Behaviours that Challenge” was given as an area where the allowance would be paid.                           

The Worker replied to explain the course covered the area of “Behaviours that Challenge” as well as palliative and diabetes care and that his post grad diploma was of a higher status than another course found in Athlone IT on “Behaviours that Challenge” which the Employer had already pay the allowance for.

The Employer wrote back to the Worker stating that a higher diploma in Intellectual Disability Nursing does not provide additional specialist skills to qualify for the Special Qualification Allowance. The Worker’s Union argues that universities would not be providing such courses if they were not to enable nurses to become specialist in their area.                              

In June 2021 the PNA wrote to the Employer asking for their decision not to pay the SQA to be reversed and clarifying that the Worker was working in an area with high levels of challenging behaviour as well as those requiring diabetes care.  

The Employer responded that the allowance is paid to nurses employed on duties appropriate to the qualification and they determined that the Worker was not engaged in such specialist duties. The PNA responded challenging this determination on the basis that the Worker’s role deals predominantly with “Behaviours that Challenge” and that the Employer has determined that this is a specialist area.

In December 2021 the Worker progressed the matter through the grievance procedure. This grievance was heard on the 22nd February 2022. The outcome of the grievance issued in March 2022.

The grievance outcome noted that the Worker’s qualification was a Category 2 qualification however that this only entitled him to apply for the allowance. The Employer had to be satisfied that the Worker worked in a specialist area engaging in specialist duties. The Employer was of the view that the Worker was not engaged in specialist duties however they also noted the need for a diabetic management specialist and agreed to liaise with the Worker for him to achieve the relevant qualifications and training to carry out these duties.               

The Worker appealed to Stage 2 of the Grievance Procedure and a meeting was held on the 23rd April 2022 and an decision issued in May 2022. The Employer did not uphold his grievance again noting its position that the Worker was not engaged in specialist duties related to behaviours that concern.                                                                                      

The Worker responded noting that the Employer had failed to provide him with a breakdown of the number of nurses who had completed post graduate courses and the number who had received the Special Qualification Allowance and the number of those with the allowance who are engaged in specialist duties.

The Worker also reported what he had stated in his Stage 1 and 2 grievances that the Diploma in Behaviours of Concerns is a Level 8 course while the course completed was essentially the same course and qualification albeit with different names and that his course has Level 9 and therefore higher standard.

The Worker progressed the matter to a Stage 3 Grievance hearing for the 30th May 2022. A decision issued in June 2022 reiterating the Employer’s position and stating again that the Worker was not employed in specialist duties. The Employer was clear that the Worker’s duties fell within the expectations and scope of an Enhanced Nurse’s responsibilities.

The Worker’s claim is that he has obtained the appropriate specialist qualifications and undertakes specialist duties.

In particular the Worker’s Union notes that the Worker was transferred to a new day service where support is provided to individuals with “Behaviours that Challenge”, an area The Worker has specialist knowledge following his completion of the Post Graduate Diploma in Intellectual Nursing. The Union further notes that the role of the Enhanced Nurse does not require them to carry out any specialist duties.

It is clear from the correspondence from management that The Worker is using this new qualification when he carries out his duties and that he was transferred to this new day service because of his level of knowledge.

The Employer paid for a course they must have known would enhance their service.

The HSEA circular dated 04th September 2002, stated the Specialist Qualification Allowance is paid to all Specialist Courses confirmed as Category 2 and that it is payable to nurses employed directly on duties appropriate to the qualification held.

It is clear that The Worker is carrying out duties appropriate to his qualifications and that he would be regarded as a specialist in his field following receipt of his post graduate diploma.

The Union referred to ADJ-00024137 in a Nurse v Hospital decision concerning the payment of the SQA where the employer states “a qualification allowance is payable to a nurse with the appropriate qualification for the role she is performing”.

The adjudicator in their findings and conclusions stated “I am of the view that the worker was entitled to be paid the Specialist Qualification Allowance form the time she was awarded an MSc in September 2010. I find the fact that the MSc was work related is persuasive in this regard.”           

The Union argues that the WRC should recommend payment of the Specialist Qualification Allowance and that this allowance be paid retrospectively to 2011 when The Worker graduated.

Much of the Employer’s case is stated in the above summary of engagement between the parties to date, I will not repeat these points here.

The Respondent refers to the HSEA circular dated 4th September 2002 which clarifies the eligibility requirements for the payment of the allowance. Specifically that this circular restates the position that : it will continue to be a matter for the employer to decide whether or not a nurse is engaged in a specialist area on specialist duties.

The Employer seriously considered the Worker’s claim for the Specialist Qualification Allowance and reviewed his duties against the standard of duties expected from a nurse in receipt of this allowance. They dealt with the Worker fairly and consistently through a 3 step grievance process. While the Worker does not agree with the position taken by the Employer it was their decision to make and it was arrived at following a fair and transparent process.  They are now actively working with the Worker to facilitate his upskilling in diabetes management and hope to see him employed in specialist duties for diabetes management following the conclusion of that upskilling.

The Employer referred to ADJ-00025125 which dealt with a claim for the SQA.

In this decision the Adjudicator reviewed the SQA scheme and concluded (in reference to the wording of the initial SQA agreement):

It will then be a matter for the employer to decide whether or not a nurse is engaged in a specialist area on specialist duties.   

Notwithstanding any inconsistency in the application of the agreement referred to above this is fatal to the complainant’s case in circumstances where the employer has not so decided. There may be inconsistencies in the manner of its application, but this agreement gives it the exclusive power to so decide.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I am of the view the Worker has achieved the requisite qualification to bring him within the scope of the SQA scheme. While the course has been discontinued it had previously appeared in the Category 2 list provided by the NMBI. This matter rests on whether the Worker is engaged in specialist duties on behalf of the Employer, specifically specialist duties concerning behaviours that challenge.

The PNA has challenged the discretion provided to the Employer in the circular, suggesting it is ludicrous that a person can take on additional professional qualifications concerning the specialist area he works with the support of his employer but not get the additional allowance.

This is not the appropriate forum to challenge the terms of existing collective agreements. If the PNA wish to seek to change the above mentioned circular then this can only be done through the normal industrial relations channels, not through S13 of the Industrial Relations Act 1969. There is no doubt that the Employer has discretion in determining whether the Worker is engaged in specialist duties as per the circular.

However the Employer’s discretion must be applied fairly and consistently.  During the hearing I asked for examples of the specialist duties which would attract the allowance. The Employer representatives outlined these at length. They included carrying out functional assessments,  consultative support for patients and formulating behaviours that support plans for patients.

The Worker argued that he performed these duties and that he participated in functional assessments and the set up of behaviour support plans, liaised with CNS and other key staff regarding patients displaying behaviours that challenge.

The Employer representatives reiterated their view that the Worker is extremely valued but that those receiving the SQA for carrying out specialist duties related to behaviours that challenge had a greater degree of independence than he does.

The Employer has discretion to determine what additional duties count as sufficiently specialist duties as to qualify a nurse for the SQA. I conclude that there is a genuine dispute between the parties as to whether the Worker is carrying out these duties.

I conclude that the most appropriate solution to this issue is for a role profiling exercise be undertaken where the Worker’s duties and role are reviewed against the profile of duties currently being carried out by his colleagues who are in receipt of the SQA working as a specialists in “Behaviours that Challenge”. This exercise should be carried out by someone sufficiently independent from the Employer and who is experienced in healthcare regrading exercises.

 If it is determined that the Worker has been carrying out appropriate specialist duties which entitle him to the SQA the Worker should be awarded back pay from the point in time from when he ought to have been in receipt of the allowance. That is the point at which, after having received the qualification in 2011, that he began undertaking specialist duties. The role profiling exercise should attempt to determine at date for this purpose. If this this date cannot be reasonably determined then the Worker should receive backpay from 1st October 2020.

special qualification allowance; nurse; regrading