Complainant

Respondent

Parties

Niamh  O' Brien

Health Service Executive

Representatives

Aislinn Finnegan, Irish Medical Organisation

 Graham Finlay, HSE

Act

Complaint/Dispute 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-00042138-001

25/01/2021

The complaint concerns the alleged failure of the HSE to provide the complainant with a statement of her terms and conditions of employment as required under section 3 of the Terms of Employment (Information) Act 1994.  The complainant is employed by the HSE to work as a GP specialising in Substance Abuse (‘GPSSA’) within the Addiction Service. The complainant commenced in the role in September 2013. The complainant claims that she is in reality an employee of the respondent rather than an independent contractor.  The respondent’s position is that this claim should properly be dealt with by way of a collective agreement as it has broader implications.

The complaint concerns the failure of Dr O’Brien’s employer, the HSE, to provide her with a statement of her terms and conditions of employment as required under section 3 of the Terms of Employment (Information) Act 1994. 

 Dr O’Brien is employed by the HSE to work as a GP Specialising in Substance Abuse (‘GPSSA’) within the Addiction Service. Dr O’Brien commenced in the role in September 2013. GPSSA’s are a small group of GPs who traditionally work part-time within the Addiction Service. When the service was initially established this was under the Eastern Health Board and comprised of 40 or GPSSAs working in the Dublin area which would now comprise Dublin North and Dublin Mid Leinster.

 A contract was then agreed shortly after the HSE was established. The contract was vague in relation to superannuation at that time as this was agreed after the contract was issued stating “if and when a pension scheme appropriate to this contract is agreed this will be applied to the GP”. 

Superannuation was subsequently agreed in 2004 and the GPs were put on the standard HSE pension scheme at that time and pension contributions are paid on their salary. 

 GPSSA’s are employed by the HSE to work in the Addiction Service.  The terms and condition of the employment are those as outlined in the Dublin-Mid Leinster GP Specialising in Substance Abuse Contract.  Dr O’Brien’s GPSSA role meets all the Revenue criteria for employment under the Code of Practice for Determining Employment or Self-Employment Status of Individuals.

Dr O’Brien under the control of another person who directs as to when and where the work is to be carried out. As with other employees with specialist medical knowledge, Dr O’Brien has significant autonomy in relation to how certain (clinical) aspects of the work are carried out. 

Dr O’Brien supplies labour only. 

Dr O’Brien receives a fixed hourly wage which is paid monthly.

Dr O’Brien is paid via payroll and tax, USC PRSI and pension are deducted at source by the HSE.

The hourly rate for GPs employed in the service as of the 1st of October 2020 is €74.04. The rate in 2006 was €70.41 and this has fallen and risen in accordance with the public service pay agreements.

Dr O’Brien cannot subcontract the work. 

Dr O’Brien does not supply materials for the job. 

Dr O’Brien does not provide equipment other than the small tools of the trade.

Dr O’Brien is not exposed to personal financial risk in carrying out the work. 

Dr O’Brien does not assume any responsibility for investment and management in the business.

Dr O’Brien does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from the engagements.

Dr O’Brien works a set hours or a given number of hours per week or month.

Dr O’Brien is a part time employee of the HSE in respect of her work as a GPSSA. 

Dr O’Brien has requested her terms in writing in respect of this employment on a number of occasions and was advised that HR advice was being sought in relation to the contract to be issued.

On the 11th of December 2020 the IMO wrote to the Dr O’Brien’s line manager requesting that she be issued with the standard contract for the grade with the same terms and conditions of employment as her GPSSA colleagues employed by the Addiction Service around the country.  A response from her line manager was received advising that the matter was being dealt with by HR and that he would revert once a response had been received.

The Respondents have sought to rely on the part-time nature of Dr O’Brien’s employment and the fact that she holds independent contractor GP contracts with the state as justification for not issuing her with a contract of employment in relation to her GPSSA role.  The complainant rejects the position of the respondent that the holding of GP contracts such as the GMS contract or the Methadone Level I or Methadone Level 2 contracts preclude a relationship of employment with the respondent being in existence in respect of the GPSSA role. 

Preliminary Argument

 The complaint referred to the WRC under section 7 of the Terms of Employment (information) Act 1994 by the IMO on behalf of Dr O’Brien relates to one individual, however the particulars of the complaint are in reality a collective Industrial Relations matter as they encompass wider collective conditions to apply to a group of Physicians and not just Dr O’Brien.  

 The respondent in refuting any wrong doing pursuant to section 3 of the Terms of Employment (information) Act 1994, purports that such a referral is broader than just Dr O’Brien and therefore in reality, an attempt to pursue a test case under the Terms of Employment (information) Act 1994. This is not the correct course of action, when at present there is collective engagement underway between the HSE and IMO.

Substantive Issue

Due to the complexities involved this is not simply a case of a HSE employee being recruited but not furnished with a contract as suggested. The respondents suggest that the matter at hand is not as simple as suggesting HSE have not complied with a section 3 of the Act, as there has been no agreement, decision or shared understanding on the view that Dr O Brien is actually a HSE employee and should have a contract of employment.

The respondents suggest that the reality of services provided by Dr O Brien is not exactly as suggested, including Dr O Brien invoicing the HSE for payment and having more autonomous control than implied where employment status has not been conceded or confirmed. Dr O Brien is contracted on a sessional basis in a clinic which is co-located on the same site as her own medical practice. The sessional hourly rate for GP’s working in such addiction service clinics were agreed historically and Dr O Brien is working in addiction service from a time period pre-dating current management of such services in Galway, where no contracts or agreements etc. are recorded locally.

The hours worked per week vary but average around circa 35 a month and payment is made on foot on invoice, with payment made through payroll, which is a more recent event due to changes as a result of revenue interpretation that precluded past payment through general accounts without tax deduction.

The reference made to a national standard is not shared by the respondent as what is referred to relates to one area of HSE, mainly Dublin and does not reflect the reality that GP’s in addiction services in the Western and Southern regions do not have such an arrangement, evident by the requirement of current collective engagement with a view to reaching an agreement.

HSE recently engaged with IMO on the issues relating to GP’s in addiction and are due to meet again. It has been made clear that Dr O’Brien would be one of a number of parties covered by this engagement. Without prejudice to this collective process any attempt at a test case is premature and potentially unhelpful to these engagements. There are approximately 12 more Physicians in addition to Dr O’Brien who have similar circumstances that the IMO is seeking the HSE to address for addiction services. One case cannot be viewed in isolation where, without prejudice to any collective engagements, any potential agreement or resolution, which would encompass all such GP’s including Dr O Brien. The respondent regards this claim as an Industrial Relations matter that has been incorrectly categorised as a statutory claim and also a test case. It is noted that claim has been brought under a statutory matter under the Act referred as opposed to the Industrial Relations Acts, which is to avoid Section 13 (2) of the  IR Act applying, i.e. precluding investigation by an adjudicator as the dispute refers to the rate of pay of a body of workers.

The HSE purport that what is before the WRC is not a rights based matter but rather an Industrial Relations matter and the claim is most certainly an issue that should not be ‘individualised’ or used as an attempt to create a precedent by way of a test case as the collective process underway must be allowed conclude as it will encompass Dr O’Brien.  The matter should therefore be adjourned to all the matters be addressed by collective agreement.

Preliminary Issue

The respondent has argued that this complaint is in reality a collective industrial relations issue and has sought an adjournment in order to allow an industrial relations process to take place. However, this is an employment rights case taken by an individual in an attempt to assert her individual rights as provided for under the Terms of Employment (Information) Act, 1994.  The consequences for the respondent in relation to other employees who may use the decision from this case in support of any claim they may have under this or any other employment rights Act is not for me to consider.  I therefore cannot accept the request for an adjournment.

Substantive issue

The primary issue for me to consider is whether or not the complainant is in fact an employee of the respondent as only then does she have the protection of the Act.  The Code of Practice on Determining Employment Status is relevant.

The Code of Practice on was first prepared in 2001 by the Employment Status Group under the Programme for Prosperity and Fairness. The Code was updated in 2021 by an interdepartmental working group comprising the Department of Social Protection, the Office of the Revenue Commissioners and the Workplace Relations Commission (WRC).  Section 3 of the Code outlines typical characteristics of an employee as follows;

While all of the following factors may not apply, an individual would normally be an employee if he or she:

Is under the control of another person who directs them as to how, when and where the work is to be carried out,

Supplies labour only,

Receives a fixed hourly/weekly/monthly wage,

Cannot subcontract the work,

Does not supply materials for the job,

Does not provide equipment other than the small tools of the trade,

Is not exposed to personal financial risk in carrying out the work,

Does not assume any responsibility for investment and management in the business,

Does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from the engagements,

Works set hours or a given number of hours per week or month,

Works for one person or for one business,

Receives expense payments to cover subsistence and/or travel expenses,

Is entitled to sick pay or extra pay for overtime,

Is obliged to perform work on a regular basis that the employer is obliged to offer to them (this is known as ‘mutuality of obligation’),

Has their tax deducted from their wages through the PAYE system.

The Code furthermore mentions important caveats to the above general characteristics, some of which are as follows;

It is possible that the provision of tools or equipment will not have a significant bearing on reaching a conclusion about which employment status is appropriate, having regard to all the circumstances of a particular case,

An individual could have considerable freedom and independence in carrying out work and still be an employee,

An employee with specialist knowledge might not be directed as to how the work is to be carried out,

An individual who is paid by commission, by share, or by piecework, or in some other atypical fashion may still be regarded as an employee,

Some employees work for more than one employer at the same time,

Some employees may also be self-employed in respect of other work being done by him or her,

If tax is not deducted from the individual’s earnings through the PAYE system, this does not mean a person with the other ‘employee’ characteristics is self-employed,

Some employees work remotely or otherwise not on the employer’s premises,

Employees may work in a range of ways, including, but not limited to, part-time work, temporary work, seasonal work or occasional work,

Some employees are paid by reference to contracted hours, while others may be paid by reference to the amount of work actually done,

The hours of work or remuneration of an employee may be uncertain.

Having listened to the evidence presented I am satisfied that the complainant substantially meets the above tests and the appropriate conclusion is that the she is an employee of the respondent.  The complainant has not been given the required information in relation to her terms and conditions as an employee and therefore, the complaint made under the Terms of Employment (Information) Act, 1994 is well founded.

 Section 7 (2) of the Terms of Employment (Information) Act, 1994 states:

 (2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:  

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner.

I believe the appropriate redress in this instance is to require the respondent to furnish the complainant with a copy of the terms and conditions appropriate to her role as an employee.  These terms and conditions should reflect those given to other employees performing broadly similar roles in the respondent’s organisation and must not lessen the terms the complainant enjoys in her current role.

I direct the respondent to furnish the complainant with a copy of the terms and conditions appropriate to her role as an employee.  These terms and conditions should reflect those given to other employees performing broadly similar roles in the respondent’s organisation and must not lessen the terms the complainant enjoys in her current role.

Terms and Conditions of Employment.  Employment status.