Earley -v- The Health Service Executive [2015] IEHC 520 (30 July 2015)

Judgment

Title:	Earley -v- The Health Service Executive
Neutral Citation:	[2015] IEHC 520
High Court Record Number:	2015 5504 P
Date of Delivery:	30/07/2015
Court:	High Court
Judgment by:	Kennedy J.
Status:	Approved

___________________________________________________________________________

Neutral Citation [2015] IEHC 520

THE HIGH COURT

[Record No. 2015/5504 P]

BETWEEN

HELEN EARLEY

PLAINTIFF

AND

THE HEALTH SERVICE EXECUTIVE

DEFENDANT

JUDGMENT of Ms. Justice Kennedy delivered 30th day of July, 2015

Introduction
1. These proceedings commenced by way of plenary summons issued on the 9th July, 2015. The plaintiff seeks interlocutory reliefs including, inter alia, seeking to restrain the defendant from reassigning her temporarily from her current position, as Area Director of Nursing, Galway Roscommon Mental Health Service and seeking to restrain the defendant from appointing another person to her position.

2. The plaintiff has been employed by the defendant since 1998 and was appointed to her current position in 2012. She is the Senior Manager with responsibility for the management, control and direction of nursing within those areas. She has responsibility for more than 60 facilities across the counties of Galway and Roscommon. She is now 55 years old and has an unblemished history of employment with the defendant.

3. By way of letter dated the 1st July, 2015, she was advised by Mr. Gloster, Chief Officer of The Health Service Executive Mid-West and interim chief officer of the HSE West, that she was to be temporarily reassigned, without prejudice, as an Area Director of Nursing, in a specialised capacity to the Programme Management Office of the National Mental Health Division of the HSE. This reassignment took effect from the 6th July, 2015, on which date Mr. Brian O’Malley was appointed as Acting Area Director of Nursing. Mr. O’Malley is only in this position pending the determination of these interlocutory proceedings.

4. It is common case that there have been alleged incidents within the relevant area involving service users, and that anonymous letters of complaint have been received by the defendant, some of which relate to these incidents. The defendant contends that it has determined to carry out appropriate enquiries by reason of these matters, the manner in which they were handled and the concerns of the Mental Health Commission. Such enquiries are threefold: specifically, a “systems analyses”, a full “national review” and a “screening process”. The latter relates to an investigation of the anonymous correspondence.

5. The defendant contends that the plaintiff has been validly reassigned on a temporary basis and that she remains in the employ of the defendant, instructed to perform duties commensurate with her skills, experience and status as a director of nursing. Such reassignment, the defendant asserts, is imperative in the short term.

6. It is undisputed that the plaintiff has been the focus of personalised attacks from the Psychiatric Nurses Association (“PNA”), which she believes is as a result of her role in implementing changes within the HSE. She contends that the true motivation behind her reassignment is that of industrial relations considerations and not for the reasons advanced by the defendant. She contends that the anonymous complaints are without foundation and have been wrongly seized upon by the defendant as purported justification for the reassignment.

7. In summary, the plaintiff objects to her temporary reassignment, saying that what is being forced upon her is in breach of her contract of employment, fair procedures and without any lawful basis. She seeks an interlocutory injunction which would restrain the defendant from so doing.

8. The defendant relies upon s. 22 of the Health Act 2004 and clause 4 of the plaintiff’s contract of employment. The defendant contends that there is an implied term in every contract of employment permitting an employer to manage its affairs in an appropriate manner.

Background
9. The plaintiff's role is that of Senior Manager and she is responsible for over 60 facilities in the counties of Galway and Roscommon. The defendant became aware of five incidents involving a service user, and the defendant considers these incidents to be very serious. According to the affidavit of Mr. Gloster, a question arose as to whether the incidents were appropriately reported or escalated. He makes reference to concerns expressed by the Mental Health Commissioner and to the receipt of anonymous complaints by the defendant, the Mental Health Commission, the Nursing and Midwifery Board and the Minister for Health. A decision was taken by the defendant to commence the enquiries mentioned above. The Court was informed that the systems analyses review will take 12 weeks, the screen process will take a matter of weeks but no time was provided for the national review. Mr. Gloster avers that on conclusion of these enquiries, the defendant may be required to undertake other procedures including, if appropriate, procedures involving the potential discipline of staff members. The plaintiff is not currently the subject of any disciplinary or trust in care process.

10. Three of the alleged incidents occurred in 2014, the remaining two were in 2015, the latest of these incidents having occurred on the 6th June, 2015. The anonymous letters are dated in April, May and June, 2015.

11. The first approach to the plaintiff by her direct line manager, Ms. Cunningham was on the 21st May, 2015. Mr. Quinn S.C., for the plaintiff, points out that this approach was before the final alleged incident and before the second and third anonymous letter. However, Mr. Ward S.C. argues that the defendant determined to carry out the aforementioned enquiries, not based merely upon receipt of the anonymous letters but that the factual matrix leading to the defendant’s decision to temporarily transfer the plaintiff is much broader than merely the anonymous letters.

12. Mr. Gloster deposes that arising from the decision to conduct the aforementioned enquiries, the plaintiff was requested initially to move to another position, which she declined. Thereafter, she was instructed to take up the aforementioned position on a temporary basis. He avers that the plaintiff was not singled out in any way but that other steps have been taken or are being taken in respect of other senior personnel who have responsibility for mental health services in county Roscommon. Further, it is necessary and appropriate that certain interim measures are put in place so that the defendant can be assured that the day to day care and management arrangements are appropriate. The defendant, it is submitted, cannot provide the necessary assurances until the aforementioned processes are complete and that, in those circumstances, it is imperative that the plaintiff take on an alternative assignment in the short term.

13. The plaintiff deposes that she subsequently sought the reasons in writing for requesting her voluntary reassignment and that she ultimately received a voicemail message on the 27th June, 2015 requesting her attendance at a meeting on the 29th June, 2015. She did not respond until the 29th June, 2015, repeating her request for reasons in writing and expressing her concern that she was being victimised for her efforts to implement reform. She avers that she received an email on the 29th June, 2015 which she states did not explain in cogent terms the reasons for requiring her reassignment. The email referenced, inter alia, the five incidents, a national HSE decision to conduct a full review of the Roscommon Mental Health Service and an unspecified “protected disclosure”. On the 1st July, 2015, the plaintiff received a formal letter from Mr. Gloster informing her of the defendant’s decision to reassign her temporarily without prejudice.

14. The plaintiff deposes that the first three incidents were investigated and risk assesses locally and that it was determined not to escalate them. She refers to a letter from Dr. Byrne, consultant psychiatrist, dated the 17th July, 2015. This letter she states was furnished to her without her request which is important for two reasons, the second of which I will refer to later in this judgment. Firstly, Dr. Byrne is the Clinical Director for County Roscommon with responsibility for a particular residential facility with relevance to the alleged incidents. Dr. Byrne confirms in his letter that he decided to deal with the incidents locally and communicated the July incidents to his line manager, Dr. Burke and to Ms. Cunningham, the plaintiff’s line manager in November, 2014. The plaintiff avers she duly reported the July incidents to Ms. Cunningham on the 29th July, 2014. The date of the communication to Dr. Burke and, in particular, Ms. Cunningham is significant, as this information was known to Ms. Cunningham as of November, 2014 yet no request was made of the plaintiff until the 21st May, 2015.

15. The plaintiff deposes that the incidents of March and June, 2015 were reported and assessed by local managers and are being dealt with in accordance with the policy of the HSE on these matters. This averment has not been contradicted by the defendants.

16. The plaintiff asserts that the trust in care policy applies and that the defendant is incorrect in failing to do so.

Application of the Maha Lingham Principles.
17. It is agreed that the test expounded by Fennelly J. in Maha Lingham v Health Service Executive [2006] 17 E.L.R. 140 applies. Fennelly J. said at p. 140 :

“... is that the implication of an application of the present sort is that in substance what the plaintiff/appellant is seeking is a mandatory interlocutory injunction and it is well established that the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grant of an interlocutory injunction where the injunction sought is in effect mandatory. In such a case it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action. So it is not sufficient for him simply to show a prima facie case, and in particular the courts have been slow to grant interlocutory injunctions to enforce contract of employment.”

18. Whilst the claims are pleaded as if seeking prohibitory orders, it is clearly the position that the pleas are essentially mandatory. Therefore, it is necessary for the plaintiff to establish a strong case in order to obtain the reliefs she now seeks; that is a strong case that she is likely to succeed at the hearing of the action. Whilst both parties agree that the test is that the plaintiff must establish a strong case, Mr. Ward asserts that in order to establish that she has a strong case; she must satisfy the Court that she will succeed ultimately in securing a permanent injunction. He says, a strong case is not made out if she simply satisfies the Court that there has been a breach of her contract of employment. He submits that the grant of an interlocutory injunction in an employment case, having the effect of enforcing a contract of employment is extremely rare.

19. Mr. Quinn accepts the plaintiff must establish that she has a strong likelihood of success but submits that Mr. Ward’s analyses of the meaning of such is incorrect. He argues that inevitably the remedy ultimately sought will be different than that sought at the interlocutory stage and that the facts of this case neatly illustrate this point. I am satisfied that there is considerable merit in this argument.

20. Further, in Maha Lingham, the Supreme Court held that the plaintiff seeking an injunction had to show that he had a strong case, that is, that he was probably going to be successful at trial. It is undoubtedly so that the decision in Maha Lingham prescribes a higher threshold in instances such as in the present case, but it cannot be the position, and I do not accept that it is the position, that a plaintiff seeking interlocutory relief must reach the kind of threshold posited by Mr. Ward. If so, it would be difficult to see how any application for an injunction could be successful at the interlocutory stage. As Fennelly J. said in Maha Lingham p. 140.:

“In such a case it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action.”

21. Therefore, it is necessary for the applicant to show that she has a strong case that she is likely to succeed, at the hearing of the action.

The Legal Basis for the Reassignment
22. The plaintiff contends that the defendant has no legal basis to reassign the plaintiff on a temporary basis. The defendant relies on clause 4 of the plaintiff’s contract of employment which provides:

“You will be employed in Galway & Roscommon Mental Heath Services. Your initial assignment will be to Galway & Roscommon Mental Health Services. You may be required to work in any service area within the vicinity as the need arises”.

22. The plaintiff argues that this is a “locations” clause and that applying the ordinary principles of the constructions of contracts, the clause does not permit of reassignment in the manner which has occurred in this case but is concerned with physical location only. It is the position that the plaintiff remains in the same office, albeit carrying out other duties.

23. The defendant also seeks to rely on s. 22 of the Health Act, 2004, which it is contended provides an express statutory power to determine the duties of employees. The defendant also seeks to rely on an implied power to manage its affairs in an appropriate manner.

Section 22(1) of the Health Act 2004 provides:-

“The Executive may, subject to subsections (2) to (5), appoint persons to be its employees and may determine their duties.”

Section 22(4) provides:-

“The Executive shall, with the approval of the Minister given with the consent of the Minister for Finance, determine

(a) the terms and conditions of employment (including terms and conditions relating to remuneration and allowances) of employees appointed under this section, and

(b) the grades of the employees of the Executive and the numbers of employees in each grade”.

24. Mr. Quinn submits that the initial power to appoint staff and determine their duties is subject to the terms of conditions of employments, that may be agreed once a person is appointed. He submitted that it would undermine any contract of employment, if the HSE could ignore the contract and fall back on the initial power of appointment.

25. Finally, on the third legal basis put forward by the defendant, that is the implied power, Mr. Quinn submits that if such an implied power existed, it would radically alter the terms and conditions of employment.

26. Clarke J. in AIB plc & Ors v Diamond & Ors [2011] IEHC 505., in considering the “least risk of injustice” said it can be useful in deciding whether a different approach is needed in certain cases. He goes on to say:

“It is now well settled that in cases involving a mandatory injunction the court will normally require a higher level of likelihood that the plaintiff has a good case before granting an interlocutory injunction….It may well be that the logic behind that departure from the normal rule can be found in the added risk of injustice that may arise where the court is asked not just to keep things as they were by means of a prohibitory injunction but to require someone to actively take a step which may, with the benefit of hindsight after a trial, turn out not to have been justified. The risk of injustice in the court taking such a step is obviously higher. In order to minimise the overall risk of injustice the court requires a higher level of likelihood about the strength of the plaintiff’s case before being prepared to make such an order. ”

27. The principles governing interlocutory injunctions must be flexible and cannot be applied rigidly. In Wallace v Irish Aviation Authority [2012] 2 I.L.R.M. 345, Hogan J. noted:

“These principles were designed to be flexible and to be capable of adaptation to the specific circumstances of the case at hand.”

28. In the present case, I have to assess whether the alteration in the terms of the plaintiff's employment is such as to render it a breach of her contract of employment. I am satisfied, applying the Maha Lingham test, that the plaintiff has demonstrated that she has a strong case that she is likely to succeed at the hearing of the action.

29. Furthermore, it is the plaintiff’s position that there is no factual basis for the defendant’s decision to reassign her temporarily. It is contended on her behalf that the five incidents and the manner in which they were addressed cannot support the defendant’s position. She asserts that the motivation is simply to appease the PNA. It is the position that the fifth incident occurred after she was first approached by Ms. Cunningham, her line manager, and that this approach predated the second and third anonymous letters. It appears from Dr. Byrne’s letter that Ms. Cunningham was notified of the decision on the first three incidents in November 2014.

30. All the authorities make it abundantly clear, that the court should not seek to resolve contested issues of fact in an application for an interlocutory injunction and I do not intend to make any findings of fact. The above matters, however, are relevant and are undisputed. It is also undisputed that in temporarily reassigning the plaintiff, such must be for an unspecified duration in that Mr. Gloster states that it may be necessary to undertake other procedures including, if appropriate, the potential discipline of staff members during this time. Therefore, while it is the position, that the plaintiff is not currently the subject of any disciplinary or trust in care processes, the reality is that she finds herself in a position whereby she cannot respond to any allegations, because she has not been suspended and may find herself in a worse position.

31. While, as Hogan J. outlines in Wallace, the courts are slow to grant relief in instances of contracts of employment, the grant of such relief cannot always be excluded as to do so would mean in effect “a denial of effective access to the courts”.

The adequacy of damages.
32. The defendant submits that damages would be an adequate remedy for the plaintiff. It is submitted that the plaintiff has herself caused or contributed to her alleged loss of reputation by bringing these proceedings. I reject this contention, as it is to ignore that damage to a person’s reputation which may apply within the individual’s profession/business where a person is suspended pending a disciplinary hearing, or pending an enquiry such as in this instance. As Hogan J. states in Wallace:

“Even in those cases of “holding” suspensions where the employee is ultimately vindicated following a full inquiry, the very fact of suspension is enough, in this valley of squinting windows, to expose the employee to the decidedly unpleasant prospect of calumny and detraction at the hands of the unforgiving and the uncharitable, not lease during the period of suspension itself. As Laffoy J. noted in

McLoughlin v Setanta Insurance Services Ltd

[2011] IEHC 410, damages can never be an adequate remedy where (as here) there is a real prospect of reputational damage to the party seeking the injunction.”

33. This is compounded in my view, where it is a senior person who has been reassigned and effectively removed from her duties, as the plaintiff has in the present case. This may carry with it a dramatic loss of status within her profession. Therefore I am satisfied that damages are not an adequate remedy.

The balance of convenience.
34. Part of the basis of the defendant’s objection to this application is that the courts cannot be involved in an on-going supervision of the employment relationship. This does not apply in the present case. The plaintiff is not asking the court to supervise the employment relationship she is requesting that she be permitted to do her job in accordance with her contract of employment.

35. I am told that the plaintiff is in a managerial position, without one to one contact with patients. The plaintiff continues to manage the facilities in Galway which does not appear to trouble the defendant. Therefore, one could deduct that there is no question of her competence. She continues to be paid her salary and therefore the defendant will not be at any financial loss if she returns to her duties. In fact, it may be unnecessary for Mr. O’Malley to continue, particularly where I have been informed that he remains in that position only until the determination of these interlocutory proceedings. As to tensions within the workplace, I said I would return to the fact that Dr. Byrne furnished voluntarily the document regarding the manner in which three of the incidents were dealt with. This assists me in considering that there is a good working relationship within management.

36. These enquiries may take some time and, in fact, no timeframe has been given regarding the National review. Consequently, the plaintiff would remain on the temporary reassignment for an unknown and, therefore, uncertain duration. The plaintiff continues to work from the same office and I am told may have the same personal assistant.

Conclusion
37. In all the circumstances and considering the perhaps unique circumstances of this case, I am satisfied that the balance of convenience favours the plaintiff and the plaintiff will therefore succeed in this application. On the usual undertaking as to damages, I propose to grant the plaintiff an interlocutory injunction and I will hear the parties as to the relevant relief.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Earley -v- The Health Service Executive [2015] IEHC 520 (30 July 2015) URL: http://www.bailii.org/ie/cases/IEHC/2015/H520.html Cite as: [2015] IEHC 520

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