Background:

The Complainant, a clinical psychologist working in public mental health services, was placed on a National Panel for Senior Psychologists in February 2017. In May 2017, a permanent position as a Senior Psychologist in Older Adult Mental Health was offered to the panel, including the Complainant, for expressions of interest. The Complainant initially expressed an interest but decided against proceeding further as the Complainant preferred a post in Adult Mental Health and expected an offer in this preferred area soon given his high ranking on the panel. In January 2018 the Complainant discovered the position on offer in May 2017 was converted to a General Adult Mental Health role due to service demands and complained this should have been communicated and re-offered to the panel on this basis. In 2019 the Complainant made a protected disclosure to the Respondent. No suitable permanent contract senior positions were offered to the panel until April 2021, and the Complainant was only placed in a temporary senior position in February 2021 which was made permanent in September 2021. The Complainant filed a grievance on this basis and claimed financial loss resulting from the lack of career progression.

In response, the Respondent first argued the matter was exempt from consideration under Section 13 of the Industrial Relations Act 1969 as it concerned a dispute regarding a body of workers. The Respondent maintained it acted at all times in accordance with necessary procedures for the advertisement and recruitment of posts. The re-designation of the post originally offered in May 2017 was necessary for the employer to satisfy the changing service need at that time. The Respondent attempted to communicate this to the Complainant through the grievance procedure, in which any delays was attributable to the COVID-19 pandemic. The Respondent denied that the Complainant was in any way an “outlier.”

Outcome:

The Adjudication Officer found a “shared blame” in the origin of the grievance between the parties, as well as a “defined sense of ‘exhaustion’” on both sides. Having regard to the unique set of circumstances, the AO made a uniquely comprehensive recommendation to the parties for 1) the Respondent to allow the Complainant access to lateral transfer to another Senior Psychologist post, with annual updates on this process, 2) the Complainant to process any further grievance strictly in accordance with agreed procedure, 3) the Complainant to file a written submission to the Respondent on suggestions to retain Psychologists in employment, 4) the Respondent to remove four weeks of sick leave from the Complainant’s record of sick leave because this was linked to his grievance, and 5) the Respondent to grant the Complainant one additional point of incremental credit from September 2021 in respect of the lack of clarity in the redesignation of the May 2017 post.

Practical Guidance for Employers:

Claims under Section 13 of the Industrial Relations Act 1969 are not strictly legal claims but are known as ‘trade disputes’. They are evaluated by Adjudication Officers on the principles of fairness and best practice, and an Adjudicator’s recommendation can be creatively developed and extend beyond the limited forms of redress available in statutory legal claims in the WRC.

The full case is here:
https://www.workplacerelations.ie/en/cases/2023/april/adj-00035678.html