ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00026904
Catherine Keogh, Fórsa Trade Union
Aisling McDevitt, IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 24/08/2020
Workplace Relations Commission Adjudication Officer: Catherine Byrne
This dispute was submitted to the WRC on February 4th 2020 and, in accordance with Section 13 of the Industrial Relations Act 1969, it was assigned to me by the Director General. Due to the closure of the WRC as a result of the Covid 19 pandemic, a hearing was delayed until August 24th 2020. On that date, I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the dispute.
The employee was represented by Ms Catherine Keogh of Fórsa and she was accompanied by her brother, who said that he attended the hearing to provide some background information relevant to this dispute. He is a retired consultant clinical biochemist and he commenced employment in the same hospital as his sister in 1975. At the time of his retirement, he worked for a different hospital. For convenience in this document, I will refer to the employee as “Ms B” and to her brother as “Mr C.”
The hospital was represented by Ms Aisling McDevitt of IBEC. The deputy director of human resources (HR) and the HR operations manager attended the hearing and gave evidence for the employer.
Ms B began her career as a biochemist in December 1979 and she has worked for the same hospital since then. She is now on the top point of the biochemist grade, which, according to the Health Services Executive (HSE) consolidated salary scales effective from January 1st 2020, is €61,176. Due to illness, Ms B has been off work since April 2015. She has used up her entitlement to sick pay and is currently not earning any salary.
This dispute is about Ms B’s argument that, in 2009, or at the latest, in 2012, she should have been moved to the next grade in her career path, that of a senior biochemist. Due to her continuing ill health, she wants to retire and she is seeking the additional pension benefit that would apply if she was on the senior biochemist grade. The top point for that grade is €73,644.
Summary of the Employee’s Case:
On behalf of Ms B, Ms Keogh described the current grading arrangement of the biochemist profession. Mr C outlined the background to this career structure, which, he said, was established in 1964:
Around 1971, a new grade of medical technician was introduced, generally occupied by people with a degree in medical science. Ms Keogh said that since the 1990s, the increased presence of medical scientists working in hospital laboratories has resulted in “a blurring of the lines” between the profession of biochemist and medical scientist.
In 2000, on foot of Labour Court recommendation 15515, issued in May 1997, an expert group was established to examine pay and pay relativities between various medical professions. The Association of Clinical Biochemists negotiated on terms for biochemists. When this process was considered to have failed, the biochemists joined the former IMPACT trade union. Also, in 2000, a round table process was set up to examine the career structure of medical scientists and clinical biochemists. Mr C said that its purpose was to seek an approach to integrating the scientific streams in hospital laboratories.
In 2004, arising from terms of reference agreed between IMPACT and the former Health Services Employers Agency, an investigation was carried out to examine claims for re-grading of 22 biochemist posts in 11 hospitals in Ireland. In respect of the hospital managed by the employer in this dispute, the investigators examined a claim for the conversion of a senior biochemist to a principal grade and, in Ms B’s case, the conversion of a basic grade to a senior grade. The “Doran McHugh Report,” as it is known, made the following comment in respect of Ms B’s role:
“The post holder has been employed as a basic grade biochemist for over 23 years. During this time, many developments in relation to structures and grading levels have taken place within the hospital. These have not resulted in any improvement in the grading level for biochemists.”
The report noted that there was a proposal in the hospital’s service plan to upgrade the senior biochemist to the grade of principal, but, other than the statement above, it was silent on the role occupied by Ms B.
The Doran McHugh report refers to “Schedule B to Circular 102/12” which sets out the grading criteria for principal, senior and basic grade biochemists. Neither party at the hearing of this dispute had a copy of or could identify the source of this document, but it must have been issued before 2004. There is a reference at clause 2.1 of the report to “the grading structure arrangements set out in the Department of Health Circular dated 16th January 1987.” Later, on the same page, clause 3.1 states that “Schedule B to circular 102/12 sets out the grading structure for Principal, Senior and Basic grade Biochemists.” From this reading, it could be assumed that circular 102/12 is the Department of Health Circular dated 16th January 1987.
The Doran McHugh reports tells us that Circular 102/12 provides that the following criteria applied to the grade of senior biochemist:
“A biochemist in charge of a smaller laboratory or a section where at least one other biochemist is employed or a biochemist working single-handed in a smaller hospital.
“In a biochemistry department, there should be a ratio of 1 senior post to every 1 basic grade employed. Any additional promotional position created under this criterion should be at the level of senior biochemist.”
Changes in the Staffing Arrangements in the Hospital’s Pathology Department
In 2006, the consultant biochemist died and in 2009, the person at the principal grade retired. A note of a meeting of senior management on March 27th 2008 was submitted in evidence by the hospital side. The purpose of the meeting was to discuss the post vacated by the death of the consultant biochemist and the anticipated retirement in 2009 of the principal biochemist. Rather than like for like replacements, the group decided that the role of the consultant would be filled by a medical consultant / chemical pathologist and the principal role by a senior medical scientist. Because the biochemists were not replaced, the union’s case is that this resulted in Ms B “undisputedly working single-handedly, and therefore, meeting the criteria for Senior Grade set out in circular 102/12 and referenced in the Doran McHugh report.”
Efforts to Secure the Appointment of Ms B to the Grade of Senior Biochemist
At the hearing, Ms B said that she sent numerous registered letters to the HR department regarding her claim. She did not produce copies of these letters and the hospital’s HR representative said that the letters they received were medical certificates. The employer’s side produced a letter from IMPACT dated 29th November 2001, in which the assistant general secretary wrote seeking an upgrade of Ms B to the level of senior biochemist. In reply, the HR manager said that no vacancy existed at the senior biochemist grade. He advised that there had been vacancies from time to time for senior medical laboratory technicians and that Ms B could apply for a “side-wards” move “to gain the relevant experience before moving up in that area.” At the hearing, Ms B said that she didn’t apply for any vacancies, because she was told that she couldn’t apply.
On behalf of Ms B, Ms Keogh wrote to the hospital management on November 1st 2019, seeking to have her job re-graded to a senior biochemist in advance of her retirement because of ill health. The hospital’s deputy director of HR replied that they would not facilitate the request. Ms Keogh wrote again on November 15th 2019, arguing that Ms B “has an established entitlement since 2009 to be paid as a Senior Biochemist.” (The senior biochemist retired in 2009). The union got no response to this correspondence and the dispute was referred to the WRC.
The Union’s Arguments in Favour of Concession of this Claim
§ Circular 102/12 clearly states that “a biochemist working single-handedly in a smaller hospital” should be at the level of a senior biochemist;
§ This criterion is ongoing and cannot be taken in isolation at a point in time;
§ This criterion is definitively referenced in the Doran McHugh report;
§ Ms B has satisfied this criterion since 2009;
§ As the criterion is ongoing, it is reasonable to assume that if the circumstances which arose in 2009 had prevailed at the time of the publication of the Doran McHugh report, the report would have recommended that Ms B’s post be up-graded to senior level;
§ It is the union’s case that the management has been unfavourably disposed to the appointment of Ms B to the grade of senior biochemist as a result of inputs from the medical science profession, which have not been addressed in circular 102/12 or in the Doran McHugh report. Mr C claimed that there has been “excessive interference by others in the biochemist grade” at the hospital.
Summarising the union’s position, Ms Keogh said that circumstances arose in 2009 with the retirement of the senior biochemist which satisfied the criteria set out in circular 102/12 upon which the findings of the Doran McHugh report relied. The union is seeking a recommendation that Ms B should have been up-graded in 2009. Alternatively, it seeks that she be retrospectively up-graded so that she can retire at the grade of a senior biochemist and gain the maximum pension benefit.
Summary of the Employer’s Case:
In 2004, the Doran McHugh report recommended that the senior biochemist in the employer’s hospital be up-graded to a principal biochemist on a “personal to holder” basis. It was envisaged that once the incumbent retired, the post would revert to a senior biochemist. However, in 2008, before the post-holder retired, staffing in the laboratory was re-structured and a decision was made that, instead of a senior biochemist, the role was filled by a senior medical scientist. The effect of this was that, on the retirement of the principal biochemist in 2009, there was no vacancy for a senior biochemist. The hospital’s case is that, in relation to the Doran McHugh report, it made no finding that Ms B should be up-graded to the role of senior biochemist.
The staffing structure which has been in operation for the past several years in the department is as follows:
A chief medical scientist;
Two clinical specialist medical scientists;
Four senior medical scientists;
Six basic grade medical scientists;
One basic grade biochemist (Ms B);
Two medical laboratory aides.
Ms B commenced job-sharing in 1980 and in 2012, when she resumed full-time working, she was integrated into this structure. She engaged in a process to determine her reporting relationship and she returned to work, without raising any grievance about her grade.
Consideration of Ms B’s Case
On behalf of the hospital, Ms McDevitt said that it is noteworthy that Ms B didn’t raise this issue between 2001 and 2019, when she applied to retire on the grounds of ill health. She said that it was unreasonable for the union to raise this grievance in 2019 and to make a claim for back-payment to 2009. No formal grievance was ever raised by Ms B before the referral of the claim to the WRC.
Ms McDevitt said that in 2018, the HSE issued criteria for the grading of biochemist roles, based on professional qualifications and experience. Applicants for a vacancy must possess the following:
§ A BSc (Hons) or a BA (Mod) in a subject area related to clinical biochemistry / laboratory medicine and diagnostics or an equivalent qualification; and,
§ A Master’s Degree in Clinical Biochemistry or a relevant subject area; and,
§ Three years’ post-qualification experience in clinical biochemistry or a related area; and,
§ The requisite knowledge and ability, including a high standard of suitability and management ability for the proper discharge of the duties of the office.
Contrary to the union’s assertion, it is the hospital’s case that these criteria for appointment to the role of a senior biochemist exceed the requirement to be working single-handedly in a smaller hospital.
Referring to the Doran McHugh report, Ms McDevitt said that the union’s reliance on this document is misconceived, because it reaches specific conclusions about a named individual at a specific point in time, 16 years ago. The grading criteria in relation to biochemist grades is under review again by the HSE, which is further evidence that the criteria for recruitment to professional roles in hospitals is not fixed, but continues to be subject to review. It is the hospital’s case that Ms B does not work single-handedly, but that she is part of a large team, and she does not meet the definition of a senior biochemist as outlined in the Doran McHugh report, published in 2004.
Summary of the Management’s Position
The hospital’s case is that the structure of the scientific laboratories is designed to deliver the optimum service to patients. The management of the hospital has decided not to have a senior or a principal biochemist in the structure. There is no vacancy for a senior biochemist for which Ms B could be considered. Ms McDevitt said that the submission of this dispute to the WRC is premature, because Ms B has not raised a formal grievance or exhausted internal grievance procedures in relation to her claim.
Findings and Conclusions:
Failure to Exhaust Procedures
In general, an employee who pursues an investigation at the WRC under section 13 of the Industrial Relations Act 1969 will have exhausted local procedures for resolution of their grievance. In Ms B’s case, it appears that she did not submit a request to have her claim investigated in accordance with the hospital’s grievance procedures, and it could be argued that this investigation is premature. I have considered the hospital’s position in this regard and I have decided that, in view of Ms B’s ill health and her wish to retire, to avoid any further delay, I will conclude my investigation and issue a recommendation.
The context of this complaint is the evolution of the staffing structure in the laboratory in the hospital since the 1970s and the decision to recruit professionals in the fields of pathology and medical science, in addition to biochemists. The structure of consultant / principal / senior / basic biochemist no longer applies and the pathology department of 16 employees is now led by a chief medical scientist.
It is evident from the Doran McHugh report (clause 7.8.1) that, in 2004, the medical board at the hospital was engaged in a review of staffing in the department of pathology and laboratory medicine. The report shows that the objective of the board was to strengthen scientific and clinical expertise with the recruitment of medical laboratory technologists, a consultant paediatric endocrinologist and senior medical scientists. The report records the hospital’s recognition of the work of the senior biochemist at the time, and it recommended that she be up-graded on a “personal to holder” basis. It is apparent therefore, that there was no intention of maintaining the role of principal biochemist in the future structure. When this employee retired in 2009, in accordance with the objectives outlined in 2004, her position was filled by a medical scientist.
Mr C described these changes as evidence of “excessive interference by others” and his view is that the medical science profession had too much influence on the staffing of hospital laboratories. He claims that there was no consultation with Ms B in 2008 when the hospital management changed the staffing structure.
It is clear from the Doran McHugh report and from the changes introduced in 2008 with the appointment of a chemical pathologist and a senior medical scientist, that the staffing structure in the laboratory is not fixed, but has developed and changed over the years to match patient care with developments in medical science. While Ms B complains that she was not consulted about these changes, her union represented staff at a national and local level and assistance was available if the impacts were detrimental to their members. While IMPACT wrote to the hospital in 2001 requesting an upgrade, there is no evidence that, up to the date of this hearing in August 2020, Ms B objected to changes in the staffing structure or that she complained that she wasn’t consulted about the changes.
The method for promotion in the HSE and across the public service is through open competition. Ms B said that she was told that she couldn’t apply for vacancies. Any instruction to this effect is entirely contrary to public service recruitment policy and should have been rejected. In a letter to IMPACT in 2001, the HR manager indicated that, as there were no vacancies for a senior biochemist, Ms B could apply for a “side wards” move as a senior laboratory technician so that she could gain experience and move on from that career strand. From a HR perspective, it is clear that there was no impediment to Ms B applying for any vacancy that she considered suitable. It is my view that if Ms B was interested in an advertised vacancy, she should have simply applied. If an obstacle was placed in her way, with the assistance of her union, this could have been brought to the attention of the HR department.
It is my view that Ms B has been a basic biochemist for her entire career because she did not apply for a suitable vacancy in the hospital where she worked or in any other hospital. This was the course of action pursued by Mr C and it had the effect of ensuring that he rose to the top of his career.
I have read the Labour Court recommendation of May 1987 and the outcome of the Doran McHugh report of 2004 which followed the establishment of the expert group in 2000 to examine the pay of professionals working in hospitals. At clause 8.8 of the report, referring to the employer’s hospital, the authors state:
“There is a proposal within the hospital’s service plan to upgrade a senior biochemist post to principal biochemist. In the absence of this being approved at this point, we recommend that (name of senior biochemist) be placed on the principal biochemist pay scale on a personal to holder basis.”
From this, it is apparent that, in 2004, the hospital planned to upgrade the senior biochemist to the grade of principal. By 2008 however, that plan had evolved further and a decision was made to fill the role with a senior medical scientist.
It is apparent to me that the objective of all hospital management must be to ensure that the health of patients is prioritised by putting in place a cohort of staff who can deliver care and expertise by reference to the latest scientific and medical knowledge. The Doran McHugh report acknowledged that objective with regard to this hospital and, at clause 7.8.1, noted that “further developments in this area are likely to require additional staff in the future.”
Ms B said that she wasn’t interviewed by the authors of the Doran McHugh report, although she is one of the 22 biochemists in 11 hospitals whose grading was considered by the authors. She gave no explanation about why she wasn’t interviewed, saying that she was unaware of the existence of the report until 2012. She argues that she meets one of the definitions of a senior biochemist as it is referred to in the report and as set out in the Department of Health circular of January 1987, “a biochemist working single-handedly in a smaller hospital.” In my view, Ms B’s role does not align with this definition because, in the first instance, the hospital where she works is a not “smaller hospital” and secondly, she does not work single-handedly, but reports to a laboratory manager and is a member of a department of 16 staff.
I have referred to the letter issued by IMPACT in 2001, in which the assistant general secretary requested an upgrade for Ms B. Ms B took no action on foot of the advice of the HR manager in response, to consider a sideways move into a vacancy that might arise as a senior medical technician. Over the following 17 years, until November 2019, she took no action to have her grievance about her grade as a biochemist examined. I find this unusual, particularly in view of the 2008 decision to fill the vacancy created by the death of the consultant biochemist with a chemical pathologist and the decision in 2009 to fill the vacancy created by the retirement of the principal biochemist (formerly a senior biochemist) with a senior medical scientist. I understand that Ms B consulted an eminent employment solicitor in 2010 regarding her return to full-time work, and this would have been an opportune time to raise her grievance regarding her grade.
If a vacancy for a senior biochemist was to be advertised in advance of her retirement, it is my understanding from the evidence submitted at the hearing of this complaint, that, due to changes in the qualification requirement introduced by the HSE in 2018, Ms B is not qualified to be appointed to this role.
In anticipation of her retirement due to ill health, Ms B is seeking to benefit from an upgrade, so that she can retire on a higher pension than that which applies to her role. As she does not intend to take up the position of a senior biochemist, her appointment to this grade would be contrary to public service recruitment policy.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have examined the employee’s claim in detail and I have considered her evidence and that of her union representative and her brother who accompanied her. Having reached the findings I have set out above, I recommend that the employer takes no further action in respect of this matter.
Dated: 16th September 2020
Workplace Relations Commission Adjudication Officer: Catherine Byrne