Complainant

Respondent

Anonymised Parties

A Social Care Worker

A Healthcare Provide

Representatives

Forsa Trade Union

 HR Manager for the Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Act, 1969

    CA-00053414

24/10/22

The complaint is a Social Care Worker with the respondent and claims to be carrying out functions at a higher level.  It is her view that the post should be remunerated at Social Care Leader level.  The respondent states that the issues comprehended in this claim are the subject of national discussions and cover a large number of posts and also that this is a cost increasing claim.

The complainant commenced employment in May 2004 as a Social Care Worker and transferred to respondent under a transfer of undertakings in January 2014. She attended third level education to receive her BA in Applied Social Studies. The complainant left Residential Services in October 2018 and commenced work with a newly established Access Team in the community and transferred into that role with her existing terms and conditions. The complainant’s primary role is as "secondary case holder" allocated to a case load, with the "primary case holder" being a Social Worker.

Her main responsibility is the organising and supervision of access visits for the children in both long- term and short-term care within her region of responsibility. This involves organising times and venues for access visits, recording and uploading information on the database, giving a report of the access visit to the Social Worker as the Primary Case Holder. She also engages with children that are currently receiving access visits, or those who have done in the past, to provide one to one support work with issues that are arising within the placement for the child in care. These issues are then reported through management structures through the Social Worker to Team Leaders or Principal Social Workers.

The complainant has had a number of cases that did not have a social worker assigned to them due to pressures in the service. Her experience and relationship with the children in the service means that she is often asked to take on extra responsibility. Her line manager has confirmed this.  For example in July 2022, she was assigned cases in respect of six children. The complainant has also acted up on behalf of the social worker should they be on leave.

Impact Trade Union and the employer concluded an agreement in 2014 to regularise all Social Care Workers in Community and Residential Care, to Social Care Leaders. Although the agreement was to be in relation to community and residential care, it would appear that only those in community were regularised. According to the employer, the complainant did not meet the criteria for regularisation as a Social Care Leader under this agreement, which required workers to be in post in the community for more than two years prior to December 2012.

The complainant became aware of a colleague who was regularised under the above mentioned agreement at a later date, without having the necessary qualifications, and this prompted the complainant and two colleagues who are in similar positions to raise grievances in relation to them carrying out the work of the higher grade of Social Care Leader, which they had been doing since 2018, and also having completed their own third level education to obtain the required qualifications. The complainant and her colleagues felt that they were being unfairly treated in comparison to this worker.

The complainant is seeking the correct rate of pay for the work that she is undertaking, which is at Social Care Leader level. Comparison of the job specifications for Social Care Worker and Social Care Leader clearly outlines that access visits are the role of a Social Care Leader and are not included in the job specification of the Social Care Worker. The complainant has been carrying out this role in the community since October 2018, and is not being recognised or remunerated for this role. While management refer to ongoing national discussions in relation to the broader issues regarding Social Care grades within the respondent, it is the complainant's view that this should not affect the claim that she is seeking, for correct rate of pay for the job that she is currently doing.

A comparison of the two job descriptions has highlighted the work being carried out by the complainant is contained only in the job description of the Social Care Leader.

Specifically, the Social Care Leader Job Description states:

"To undertake, supervise and support access visits to children in care with their parents and extended family, and access visits arranged on court orders. To keep such records and submit such reports as are required from time to time” 

Management have also stated that Social Care Leaders have line management responsibility which excludes our complainant. However, the Social Care Leader job description states:

"The Social Care Leader may also have additional supervisory duties of Social Care Workers or Family Support Practitioners and others that may be required"

Not all Social Care Leader roles involve supervisory duties, and two recently appointed Social Care Leaders are not carrying out these responsibilities but are in fact doing identical work to the complainant but at the higher grade.

The difference in monetary terms between the two roles is minimal.  Rather it is about the recognition for the role that the employee is being expected to carry out, being the work of a Social Care Leader, based on the employer's job descriptions in relation to these posts. The claim is that the complainant should be acknowledged in the role as a Social Care Leader and be afforded the appropriate rate of pay for the role that she has performed since October 2018.

The respondent’s position has been clear and consistent throughout all of the negotiations on this matter. It is not a single person issue but rather a national issue which should be raised by FORSA nationally and negotiated as such. There are a large number of cases nationally which will all be impacted by any decision on this single case. It is effectively a grade claim for the grade of Social Care Worker in the Community to be regraded to that of Social Care Leader. 

 The existing national agreement cannot be applied in this case as it contains a number of specific qualifiers which the complainant does not meet. Namely it refers to being employed in the Community services for two years prior to December 2012. The complainant did not commence employment in Community services until October 2018. In March 2021 the respondent wrote to FORSA confirming that the agreement did not apply and also that any such claim would be a cost increasing one which was prohibited by the terms of the national Pay agreement Building Momentum.

A restructuring programme is currently underway within the respondent and FORSA have a number of claims being progressed as part of it. The grading of many different grades of staff including Social Care staff is to be included in this process. 

The respondent and FORSA are both signatories to the national Pay agreement Building Momentum which prohibits all cost increasing claims. A job regrade through any means is just that, a cost increasing claim and is therefore prohibited. This has been confirmed to the respondent by the Department of Public Expenditure and Reform and is a matter of ongoing dispute between FORSA and the respondent, with conciliation held on the 12th January 2022.  Following this conciliation, a referral has been made to the Public Service Agreement Group (PSAG) and a hearing date is awaited.  In an initial referral to the Labour Court, the Court accepted the respondent’s position that they are required to secure sanction from the relevant Government Departments and such sanction was denied as it was a cost increasing claim in the context of the public service agreement, section 5.6.1. 

 It is a matter of record that the complainant does not have any staff supervision responsibilities in her current role. While there are many similarities between the two job descriptions the supervision requirement is a significant one and one which is not applicable to the complainant.   

The respondent is aware of a number of similar cases which have been referred to the WRC and recommendations have already been issued on them.  In ADJ-00038041 the circumstances and arguments are similar to those contained in this claim. Likewise, in ADJ-00035454 while the grade being claimed was for that of a Social Care Manager the circumstances and arguments were again similar to those contained in this claim. In both cases the Adjudicator did not uphold the claims.   

In essence this claim, while taken on behalf of a single individual, is applicable to all Social Care Workers in Community Services which number some 250 whole time equivalents across the country. If all these staff were to be upgraded to the position of Social Care Leader the costs involved in salary payments alone would be €8,395 each, giving a total cost of €2.1m which is clearly a cost increasing claim and one which is precluded by Building Momentum. 

Collective bargaining is the principal method by which grading and/or regrading issues are addressed in the public sector.  I note that a significant agreement was previously put in place which addressed similar issues to those in this case.  I note that it is accepted by both parties that there are national discussions taking place with a view to addressing issues relating to the staff not comprehended in the aforementioned existing agreement.  It is the position of management that the employee’s concerns should be addressed in the context of these talks.  It is also management’s position that there are many other individuals in a somewhat similar position to that of the complainant. I also accept that regrading is a cost increasing claim.

 In these circumstances do not believe it is appropriate for me to issue a recommendation in favour of the complainant in advance of the anticipated national agreement.  I accept the assurances given by the employer that this case will be comprehended by the anticipated national agreement and recommend that the employee await that outcome. I would encourage both parties to conclude such an agreement in a timely manner.

Having considered the arguments outlined by both parties and having regard to all of the circumstances, I do not recommend in favour of the worker.

Carrying out functions at a higher level, cost increasing claim, national discussions