Worker

Employer

Anonymised Parties

A Health Service Employee

A Health Service Employer

Representatives

Rachel Carroll

 Employee Relations Manager

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 - 00000914

06/12/2022

This referral is made on behalf of a former employee who ceased employment with this Health Service in February 2021. She was employed at all times as a Psychiatrist under the Non Consultant Hospital Doctors Contract (“NCHD”) at a medical facility located in a defined geographical area under the control of the Health Service. The Doctor was paid at the rate applicable to Senior House Officer even though the work that she was doing was equivalent to that of a Registrar, which post attracts a higher rate of remuneration. It was contended that she should, during her former employment, have been paid at the higher, Registrar rate since she was eligible to be appointed a Registrar and did essentially the same work as a Registrar. However, she contended that additional requirements were imposed by management in relation to education qualifications necessary for appointment to Registrar and she sought to challenge those additional requirements. She also contended that her candidacy for Registrar had not been fairly considered. The Health Service did not concede any of the claims made. The matter came before me for investigation and a hearing took place at the offices of the Workplace Relations Commission on the 12th of June 2023 after which further submissions were directed and received from both parties.

The Doctor making the present referral was employed by the Health Service Provider (“the Provider”) as a Senior House Officer (“SHO”) in the Psychiatric Department of a specified city area (hereafter the “Service”) under the control of the Health Service from the 3rd of July 2017 to January 2020. The Doctor was paid on the SHO salary scale based on the employer’s assessment of her role/experience. She returned again as an SHO, in March 2020 until the 25th of February 2021. On this most recent employment the Doctor was again paid on the SHO salary scale. 

Section 16 (b) of the Non Consultant Hospital Doctors contract (“NCHD Contract”), as regards incremental credit, states that ‘[in] relation to the appointment of a doctor to the post of registrar, he /she should have at least 24 months post qualification (completion of internship) experience before being eligible for such an appointment.’ The Doctor queried her status as an SHO rather than as a Registrar as she had completed two years’ experience following her internship year and this aligned with the contract. She was advised that although she was eligible to apply become a Registrar on the basis of her specific experience, under the contract, she was not automatically entitled to be given the position of Registrar. Nonetheless the Doctor asserted that the job specifications for both the position of an SHO and a Registrar in this Service were ‘the same’ and therefore while she worked in the Service, she was carrying out the tasks associated with that of a Registrar and should have been paid at the Registrar rate.

In addition to two years’ experience, the medical facility where the employment took place imposed an additional requirement to be appointed and paid as a Registrar in that candidates also had to have passed MRCPysch papers A and paper B (“the Additional Requirement”). This was understood to have been as a result of a clinical determination made by the College of Psychiatrists of Ireland. By way of letter dated the 3rd of September 2020, the Union sought clarification on this determination from the Royal College of Psychiatry and a response was received stating that ‘[r]elating qualifications or exams to pay scale is not a concept which has been proposed, endorsed or supported by the College’. The IMO sent a  copy of that letter on behalf of the Doctor to the Manager of the facility where the Doctor was employed on the 19th  of  November 2020 contending on the Doctor’s behalf that progression to the grade of Registrar should not be on the basis of the completion of exams which have no implication on the job specification itself, particularly when the Doctor had been advised directly by the employer that there was no difference in the roles.

It was contended that NCHDs are entitled to be considered for a Registrar position once they have completed 24 months post intern experience as per Section 16 (b) of the NCHD contract. It was argued that there was a lack of documentary evidence around the standards used to assess NCHDs by the Facility

Section 16(b) of the NCHD contract does not refer to any additional examination requirements needed to progress from the position of SHO to Registrar. The Doctor was advised that she could not progress on the basis of this requirement despite the fact that she had been informed by the employer that there was no difference between the roles.

Section 2.6.4 of the ‘Code of Practice – Appointment to Positions in the Civil Service and Public Service’, states that ‘[t]he selection processes…are underpinned by objectively written and effective job specifications’ and that the selection process should be focused on the ‘purpose of the job, its main accountabilities and the essential skills and personal attributes needed to perform the job effectively.’

The IMO submitted that the Doctor approached the employer in relation to her own contract and the manner in which her own experience was assessed. She was assessed by standards that were not applied to other NCHDs and suffered as a result of the incorrect assessment of her experience. No documentation was provided to the Doctor or the IMO to show that these were the standards by which NCHDs were going to be assessed. The Doctor was unable to progress to the higher paid, higher grade position of Registrar despite having 24 months experience after her intern year and despite confirmation from the Respondent that there were no difference in the job specifications of SHO and Registrar.

The IMO submitted that the Doctor’s own experience at the Facility was unfairly considered under Section 16(b) of the NCHD contract and that additional and unnecessary barriers were placed in the way of her progressing to the position of Registrar which is contrary to Section 2.6.4 of the Code of Practice to Positions within the Civil Service and Public Service.

The Doctor was significantly financially disadvantaged as a result of standards being placed on a review of her own experience with the Facility.

While this complaint related to Section 16(b), it also related to the advice that was given to the Doctor by the employer, the way in which her own experience was assessed and the affect that the employer’s decision had on her earning capacity.

The Health Service Employer argued that the Doctor was not a worker within the meaning of that term in the Industrial Relations Acts as her employment ceased in February 2021

It was contended that the referral was out of time by analogy with the time limits prescribed in the Workplace Relations Act 2015 and/or that there was an excessive delay as the present referral was initiated in December 2022 almost two years after leaving the employment of Health Service in February 2021.

With regard to the Additional Requirements that candidates for Registrar complete MRCPsych Papers A and B, the Health Service said that this was a custom and practice within the service which is continuing. Whilst the criteria for progression from SHO to Registrar can vary from area to area within the undertaking, it has been consistently applied across the service in this particular geographical area. Such anomalies that currently persist with regard to the progression from SHO to Registrar in Psychiatry are to be addressed and agreed upon at national level to allow consistency of practice around the country.

As regards the similarities in the roles as between SHO and Registrar the Health Service stated that this unique situation has also been raised nationally and is the subject of discussions in the new national contract talks for Non Consultant Hospital Doctors.

Whilst the completion of two years’ service does render a Senior House Officer eligible to be appointed to the position of Registrar it does not guarantee such an appointment. It was further submitted that a deviation from the established practice would have result in the automatic retrospective regrading of all relevant SHO posts to that of Registrar without proper governance and beyond the capacity or funding of the Health Service.

Any unfairness or unequal treatment of the Doctor in relation to her employment and specifically with regard to the application of standards to her or the assessment of her experience was denied by the Health Service. The Doctor had also failed to pursue and/or to exhaust the grievance procedure in her contract before making the present referral.

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

The definition of “Worker” in Section 23 (1) of the Industrial Relations Amendment Act 1990 extends to a person who has “worked” - in the past tense. The Doctor was formerly employed by the Provider and thus she does come within this definition and accordingly the Provider cannot rely on this ground of objection.

The time limits set out in the Workplace Relations Act 2015 do not apply to this referral which is governed by the Industrial Relations Acts. However, the issue of delay is relevant when taken in conjunction with the failure to pursue an internal grievance, as discussed below.

In essence the Doctor’s substantive complaint rested on two central issues; firstly, that the Additional Requirements should not be applied and secondly, that even if they can be properly applied, the way in which the Doctor’s own experience was assessed was unfair.

As regards the general applicability and fairness of the Additional Requirements, this particular Facility in this particular geographical region imposes conditions for appointment as Registrar above and beyond those contained in Section 16 (b) of the NCHD contract. Specifically in addition to the two years’ experience expressly provided for, it is also necessary to have additional qualifications (MRCPysch A and B). The Union contended that the Royal College of Psychiatrists clarified that relating qualifications or exams to pay scale is not a concept which has been proposed, endorsed or supported by the College. The Union also pointed out that in this Service the work of a Senior House Officer and that of a Registrar are similar. 

The Health Service contended that the additional requirement is an established custom and practice within that particular service (i.e., the service throughout that geographical area) and that it is uniformly applied in that area. I note that the Union does not contest this assertion.

The Health Service further contended that the concession of the issue would in effect lead to the automatic retrospective regrading of all relevant SHO posts to that of Registrar without proper governance and beyond the capacity or funding of the Health Service. Again, the Union did not address this issue but rather seeks to raise the issue in relation to the Doctor making the present referral.

Section I3 (2) of the Industrial Relations Act 1969 makes it clear that I have no jurisdiction to investigate a trade dispute which involves rates of pay of a body of workers. I take the view that the issue of whether the Additional Requirements are appropriate generally, when properly examined in its full context, has implications far beyond the particular (former) employment which is the subject matter of this referral and is more in the nature of a dispute concerning the rates of pay of a body of workers, i.e., Senior House Officers within the Service. I am fortified in this view by the fact (which was not contested) that the issues of progression from SHO to Registrar in Psychiatry, as well as  the anomalies of the similarities of the duties attendant on the respective roles in the area of Psychiatry are to be addressed and agreed upon at national level to allow consistency of practice around the country. In such circumstances I conclude that have no jurisdiction to investigate the issue as to the applicability or fairness of the Additional Requirements and I must decline to do so.

I now turn to the more specific contention made on behalf of the Doctor, that “She was assessed by standards that were not applied to other NCHDs and suffered as a result of the incorrect assessment of her experience”.

No further submissions to support this contention were made. I note that the Doctor did sign all of her contracts of employment with the Service. While a letter was sent by the Union to management in November 2020 when the Doctor was still employed by the Provider at the Service, no formal grievance was pursued at that time or at any time thereafter until the present referral was made and received by the WRC on the 6th of December 2022 approximately 1 year and 10 months after the cessation of the relevant employment. I note that the NCAD Contract (at paragraph 21) specifically refers to Grievance Procedures and I also note that the Code of Practice – Appointment to Positions in the Civil Service and Public Service (paragraph 2.6.4 of which was relied on by the Union), also sets out Review and Complaints Procedures and these were not pursued by the Doctor or by the Union on her behalf either.

I take the view that the issue raised, which is essentially one of alleged unequal treatment of the Doctor in a former employment which ended in 2021, should more properly have been raised as a formal grievance using local procedures either during or within a short time after the employment. It is a well-established principle of industrial relations practice that a dispute should not be referred for investigation to this forum unless and until all internal grievance or other dispute resolution procedures have been exhausted. This has not happened in the present case. The present process cannot operate as a substitute for local dispute resolution procedures which have not been exhausted and I also take the view that it would be unfair and impractical to expect the Health Service to facilitate any such local grievance or other dispute resolution procedures at this far a remove from the events which would form its subject matter. 

In conclusion I make no recommendations in the worker’s favour.

Definition of “Worker” in Section 23 (1) of the Industrial Relations Amendment Act 1990 - Non Consultant Hospital Doctors Contract – Psychiatry – Progression from SHO to Registrar - Code of Practice – Appointment to Positions in the Civil Service and Public Service - Industrial Relations Act 1969 Section 13(2) -  dispute concerning the rates of pay of a body of workers - failure to exhaust local procedures