Earley v HSE and whether an employer can lawfully reassign an employee to different duties

The recent judgments of the Court of Appeal in Earley v HSE ([2017] IECA 158, 15th May 2017) and [[2017] IECA 207, 18th July 2017) are hugely significant for those involved in employment law. They provide a detailed examination of whether an employer is entitled to reassign an employee to different duties of employment absent any investigation or disciplinary process being invoked against that employee where exceptional circumstances indicate the reassignment is necessary. The most recent judgment examined the issue of the appropriate order to be granted to Ms Earley who succeeded in her appeal (judgment of 15th May 2017) and is interesting in its scope.

Background

Ms Earley is employed as Area Director of Nursing, Mental Health Services, for the Galway/Roscommon area. This position is a senior post within the HSE and is one which involved clinical and management responsibilities.

In April and May 2015, the HSE received a series of anonymous complaints relating to a number of alleged incidents which had occurred at HSE facilities in the Galway/Roscommon area and alleging they had not been dealt with appropriately. A protected disclosure was also made by an identified member of staff.  The HSE decided to conduct an investigation in relation to these alleged incidents and the manner in which they were handled.

Ms Earley was originally asked if she was prepared to be reassigned but she refused.  In light of the allegations and the difficulties presented in the Roscommon area for the mental health services, the HSE concluded that it was necessary for certain interim measures to be put in place so it could be assured that the day to day care and management arrangements would be appropriate. It appears this was on the basis of concerns for the operation of the services over which Ms Earley had charge. Ms Earley was informed of her temporary reassignment from duties from the position of Area Director of Nursing for Galway/Roscommon Mental Health Services to that of Area Director of Nursing in a specialised capacity to the Programme Management Office of the National Mental Health Division of the HSE. Her salary and benefits remained in place but the duties were non-operational in nature.  This reassignment necessitated the replacement of Ms Earley on a specific purpose basis. The position of the HSE was that the reassignment was the nature of a protective and temporary measure made on a without prejudice basis. There were no disciplinary reasons for the reassignment. The reassignment took effect from 6 July 2015.

Proceedings

Ms Earley instituted proceedings seeking to restrain the HSE from giving effect to the reassignment. The interlocutory application of Ms Earley was successful before Kennedy J. in the High Court ([2015] IEHC 520) and an order was made restraining the HSE from giving effect to the reassignment pending the trial of the action. The full hearing of the proceedings was heard by the High Court and in November 2015, O’Connor J. ([2015] IEHC 841) found the reassignment of Ms Earley to be lawful and he refused to grant any relief restraining the reassignment from taking effect. O’Connor J. came to this conclusion on the basis of there being an implied entitlement of the HSE to reassign the Plaintiff in circumstances where there were serious concerns about the functioning of the service.  The result of this judgment was that the reassignment was permitted to take effect.  From 30 July 2015-27 November 2015 Ms Earley remained in her original post.

The High Court judgment refusing to restrain the reassignment on a permanent basis was appealed to the Court of Appeal by Ms Earley.

Contractual Provisions

Ms Earley’s contract of employment provided for her employment in her position of Area Director of Nursing, Mental Health Services, at the location of Galway and Roscommon Mental Health Services with a specified area manager as her line manager, with duties as per a job description which were clinical and management in nature, which specified her as Head of Nursing for a particular area with the caveat that other duties appropriate to her position could be assigned to her.  The contract also contained a clause that her terms and conditions of employment could be revised in certain circumstances and that she could be assigned to work in any service area within the vicinity as the need arises.  The contract, therefore, contained a specific contractual position which was linked with a specific job description and made a number of commitments such as any reassignment only being to duties appropriate to the position.

First Court of Appeal Judgment

The Court of Appeal, per Hogan J. reversed the High Court judgment and held that the employer had breached Ms Earley’s contract of employment by reassigning her to duties which were clinical and operational in nature as specified in her contract of employment and job description, to those duties which were non-operational in nature.  This was in spite of the reassignment being a temporary one, arising in exceptional circumstances and expressed on a without prejudice basis with there being no change in the remuneration of Ms Earley.

The Court of Appeal was satisfied there was no basis in contract for Ms Earley to have been assigned to different duties by reason of the contract of employment and job description prescribing clinical responsibilities as well as managerial duties. If any reassignment took place, in order for it to be permissible within Ms Earley’s contract, it had to be “appropriate” to her position as this was expressly provided for in her contract. The nature of the reassigned position-which was non-operational in nature and provided no clinical duties-was found to be inconsistent with her contractual position. The Court was not persuaded that an implied term of the contract of employment permitted reassignment in exceptional circumstances could be applied to Ms Earley as it was inconsistent with the express terms of her contract. On that basis, the reassignment of Ms Earley to non-operational duties constituted a breach of contract and a declaration to this effect was granted.

Second Court of Appeal Judgment

The Court of Appeal was caused to issue a second judgment on the issue of the appropriate remedy for Ms Earley as no steps were taken by the HSE to restore her to her contractual position following the first judgment. The HSE adopted the approach that any relief was one in damages for breach of contract. Ms Earley’s lawyers argued that damages for breach of contract would be an empty remedy as no financial loss was caused to Ms Earley by her reassignment but in order for an effective remedy to be provided, it was necessary for her to be restored to her original post by order of the Court of Appeal.

The decision of the Court of Appeal to make the order sought by Ms Earley restoring her to her contract position was practical as well as legally significant in circumstances where she had been reassigned to alternative duties since November 2015 when she was unsuccessful in the trial of her claim. The rationale for the decision was the necessity for an effective remedy to be provided to Ms Earley and unless an order was made, she would only be provided with a theoretical remedy.  An order was made restoring Ms Earley to her contractual position as Area Director of Nursing, Mental Health Services for the Galway/Roscommon region.

Comment

Whilst there are aspects of the judgment which are factually specific, the judgment still provides practical guidance for employers seeking to reassign employees outside of a disciplinary process.  It makes it clear that the terms of the contract of employment must be respected, in particular if very specific provisions are contained in a contract of employment or job description pertaining to the types of duties involved. Given Ms Earley held a senior position with operational and non-operational duties, she was entitled as per her contract of employment to undertake such duties and not be reassigned. It appears from reading the judgment of the Court of Appeal that if a clause had been provided permitting reassignment to other duties on an exceptional basis, the outcome could have been different for Ms Earley. The reference to reassignment only being to appropriate duties very clearly linked any reassignment with the precise nature of the duties undertaken by Ms Earley.

It is important for employers to review their contracts of employment and consider including a clause permitting reassignment to other duties in exceptional circumstances alongside the more traditional clause permitting reassignment to similar duties where necessary outside of a disciplinary process.  The judgment of the Court of Appeal arises in the backdrop of other cases such as Reilly v Bank of Ireland ([2015] IEHC 241) and Wallace v Irish Aviation Authority ([2012] IEHC 178) where actions taken against employees removing them from their employment through suspension have been found to be unlawful. The Earley judgment continues in this vein and therefore employers will have to consider the contracts of employment of employees prior to their taking any actions potentially adverse to the employee and their contractual position. 

Read the full decision here:
http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/1a845dc5ccda0ca780258164002fe505?OpenDocument