Worker

Employer

Anonymised Parties

A Clinical Nurse Manager

A Hospital

Representatives

Irish Nurses and Midwives Organisation

Represented by Management

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 - 00003897

03/03/2025

The hospital managed by this employer was formerly a company limited by guarantee, but is now part of the HSE.  It provides complex rehabilitation services to patients, who, as a result of an accident or injury, have a physical or cognitive disability and need a specialist programme of rehabilitation.  Phase 1 of a new hospital opened on June 22nd 2020 and the facility now comprises 120 single rooms, specific integrated therapy spaces, social spaces and clinical and ancillary services.  The facility includes the national spinal injury, prosthetic and brain injury and stroke rehabilitation services and a paediatric department. 

On October 14th 2007, the worker commenced employment as a permanent part-time clinical nurse manager (CNM) grade 2 on night duty.  She works an average of 19.5 hours per week, rostered over four nights one week and three nights the following week and then two weeks off. 

The night duty CNM is the person in charge at night, deputising for the director of nursing, with sole responsibility for staff and patients and for the management and coordination of quality patient care and safety.

In December 2019, the INMO submitted a claim that the worker’s role should be re-graded to a clinical nurse manager grade 3 (CNM 3).  When the claim wasn’t conceded, in August 2020, the union submitted a formal grievance on behalf of the worker.  When that grievance wasn’t resolved, in March 2021, the grievance was submitted to the WRC as a dispute for resolution under s.13 of the industrial Relations Act 1969.  The dispute was withdrawn in March 2022 when the parties agreed that an independent job evaluation of the worker’s role should be carried out.  In June 2023, the independent evaluator recommended that the worker’s role should be re-graded to CNM 3.  The employer accepted the outcome of the re-grading process in the context of the expansion of the hospital, the increase in staff and the impact of this on the worker’s role.

The HSE approved the appointment of the worker as a CNM 3 with effect from May 5th 2025.  Following engagement between the employer and the HSE on the issue of retrospection, the re-grading was back-dated to January 2023.

The issue I have been asked to investigate is the INMO’s claim for the CNM 3 salary to be back-dated to December 5th 2019, which is when the union first raised the re-grading claim on behalf of the worker.  The worker also seeks the retention of a “red circled” allowance for payment of a break on night duty, which was paid to her as a former night duty CNM 2.  The employer’s position is that this allowance is not applicable to the worker’s new CNM 3 role.

Date of Retrospection for Re-grading

As a night nurse manager at CNM grade 2, the worker’s remit covered the entire hospital site.  She was the most senior employee on the site and all decisions regarding the health of patients and staff rested with her.  Nurses of similar and higher grades “handed over” full responsibility for the running of the hospital to her at night and the union’s position is that her role was comparable to a CNM 3 in other facilities.  From 2020, the hospital was expanding, with a new facility due to open in June that year.  This resulted in increased bed capacity in single rooms for patients and had a direct effect on patient visibility, safety and care. 

Staffing for the new facility was agreed following an independent safe staffing review.  It was agreed that this process would provide some insight into the worker’s role and responsibilities and her claim for re-grading to CNM 3.  Due to a delay completing the staffing review, and the delays caused by Covid-19, the job evaluation process was completed in June 2023.  The worker was appointed to the CNM 3 scale with effect from May 5th 2025.  Further discussions between the employer and the HSE resulted in an agreement to back-date the appointment and the CNM 3 salary to January 2023.

In her submission, Ms Stenson argued that the decision not to back-date the re-grading to December 2019, when the claim was lodged, “only serves to encourage delay tactics and discourages employees taking claims.”

Ms Stenson submitted that the employer was aware that the worker was operating at the higher grade of CNM 3, but she was paid as a CNM 2.  This has resulted in a financial disadvantage and Ms Stenson said that it is incumbent on the employer to retrospectively appoint the worker from the date that the claim was lodged.

Ms Stenson referred to three specific decisions of the Labour Court which, she said, provide authority for a finding that retrospection should be effective from the date that the claim was submitted:

LCR 21588, Rotunda Hospital and the INMO

The claimants in this case were community midwives and they sought retrospection of a subsistence payment with effect from 2005.  The Court hearing took place in September 2017.  The management had offered six months’ retrospection, but the Court recommended payment from the date the claim was lodged in March 2015.

LCR 20616, HSE Dublin / Mid Leinster and A Worker represented by the INMO

A CNM 2 in charge of the emergency department in a hospital sought re-grading to CNM 3 with retrospection back to the date of her appointment in the role in February 2012.  The HSE agreed that the role was a CNM 3 role and the Court recommended that she was appointed to the role and paid the CNM 3 salary with effect from the date she started in the job.  Ms Stenson argued that, as the worker in this case has been carrying out the higher grade role and the employer has accepted the outcome of the evaluation process, she should be paid with effect from the date that she lodged her claim.

LCR 21003:  HSE Mid West and A Worker

At a hearing in November 2014, the worker argued that she had been acting at grade 4 since 2010 but she continued to be paid at the pay scale of her substantive grade 3.  The Labour Court found that the worker had been carrying out the higher grade role since 2010 and recommended full retrospection with effect from April 1st 2010.  Ms Stenson argued that the same principle should apply to the worker in this case.

At the hearing, the worker explained the evolution of her role from what was referred to as a “night sister” to a clinical nurse manager at grade 2.  She said that, as a CNM 2, she effectively managed the hospital on her own.  Since the opening of the new facility, there are 120 staff on night duty, compared to 110 previously.  She said that CNM 2s look after between 10 and 15 patients and on night duty, she is responsible for 120 patients.  She said that she knew she was on the incorrect grade and that she has been trying for years to get the situation resolved.

In her submission, Ms Stenson provided a table which sets out the difference between the CNM 2 and CNM 3 salaries since December 2019, in line with the points on the CNM 3 scale that would have applied to the worker if she had been on that scale.  She said that, if the hospital had conceded the claim, the CNM 3 salary would have applied to the worker from January 2020. 

The Red Circled Allowance

Ms Stenson explained the background to the red circled allowance.  She said that, when the hours of work were reduced from 39 hours to 37.5 hours, the night staff couldn’t reduce their hours and, because of this, they were paid for their breaks.  The worker associated with this case is the only one remaining of the four nurses to whom the red circled allowance applied.  Ms Stenson argued that the outcome from the independent job evaluation process is not an opportunity for management to re-write the worker’s terms and conditions of employment.

Date of Retrospection for Re-grading

The hospital’s director of HR outlined the background to this claim, which mirrors the outline provided by the union.  She referred to the nursing staffing review which was the subject of a conciliation conference at the WRC in June 2020.  Given the move to the new hospital facility around that time, and the delays that resulted from the Covid-19 pandemic, the independent nursing review was slow to make progress.

When the worker’s claim for re-grading was referred to the WRC for adjudication in March 2021, it was agreed that an independent consultant would undertake a job evaluation exercise to determine the appropriate grade for what was then the CNM 2 night duty role.  It was agreed that the consultant appointed to undertake the staffing review would also carry out the job evaluation exercise.  There were some roadblocks to the appointment of a suitable person to carry out the staffing review and agreement was subsequently reached that this should be done under the auspices of the nationally agreed Framework for Safe Staffing. 

Arising from this development, the parties agreed on an independent consultant to carry out a job evaluation exercise of the worker’s role and steps to conclude that process were taken between May and September 2022.  The report produced by the independent consultant in June 2023 recommended that the worker’s role should be graded at CNM 3 level and that there should be rotation between days and nights.  The INMO made submissions to the employer regarding the issue of rotation, but the employer did not concede to the union’s proposals.  The union contacted the employer again in January 2024 concerning a request for reasonable accommodation for the worker to roster her for night duty only and the parties met on April 30th.  On August 9th, the HR director wrote to the INMO and confirmed that the employer would agree to the worker’s request to remain rostered only on nights.  The worker accepted the outcome of the job evaluation exercise and the employer’s agreement to her request for reasonable accommodation.

The HR director said that the hospital confirmed that it accepted the findings of the report to upgrade the worker’s role to CNM 3 level and moved to consult with the HSE on the change.  Although this claim was taken by the union on behalf of one nurse, the HSE was concerned that the outcome could be applicable more widely, because the worker’s post was one of a number of similarly graded posts covering night duty.  The employer’s decision to accept the re-grading recommendation was based on the expansion of the hospital, its environs and services, further to phase 1 of a new hospital and in recognition of the increase in staff and the expanded remit and accountability of the worker’s role.

While all this was happening, the creation of new hospital regions meant that the hospital moved from the Ireland East Hospital Group (IEHG) to the Dublin and South East region (DSE).  Following discussions with the regional director of people and the HR team in the region, the HSE approved the re-grading of the worker’s post to CNM 3 with effect from May 5th 2025.  Subsequently, agreement was reached to commence the worker as a CNM 3 with effect from January 2023, which is when the worker met with the job evaluation consultant.

On the matter of retrospection, the HR director referred to the following Labour Court recommendation:

LCR 22972, Letterkenny University Hospital and A Worker

The Court varied the recommendation of an adjudication officer in relation to the effective date of the up-grading of the worker from a grade VII to a grade VIII.  The Court recommended a change in the effective date from September 4th 2019, which is the date she submitted her grievance, to April 2nd 2023, which was the date on which the job evaluation report was produced.

It is the employer’s position that the placing of the worker on the CNM 3 scale with effect from January 2023 is fair and reasonable, in line with the principles of the HSE Job Evaluation Scheme and consistent with how retrospection has been applied previously in relation to the effective date of the up-grading of roles.

The Red Circled Allowance

Following a Labour Court recommendation in January 2011 on the implementation of a 37.5 hour working week, the employer and the INMO reached an agreement to pay four named CNM 2s for their rest periods when they were working nights.  This red circled agreement provided that the four nurse managers on night duty would be paid 13 hours’ pay for working a shift of 12 hours and 20 minutes.  The worker who has submitted this dispute to the WRC was the only one of the four remaining CNM 2s working in the hospital when the job evaluation exercise and the safe staffing exercise took place in 2022.  Apart from this worker, CNM 2s who cover night duty are entitled to a paid break of 40 minutes and an unpaid break of 50 minutes.

The employer’s position with regard to this allowance is that it was paid to the worker on a “person to post-holder arrangement” in her capacity as a CNM 2.  As her role has been re-graded to a CNM 3, the employer’s position is that the red circled arrangement no longer applies and that it should cease with the appointment of the worker to the new promotional role.

Date of Retrospection for Re-grading

The employer has determined that the worker should be re-graded as a CNM 3 with effect from January 2023.  At the hearing, I was informed that the revised salary is in place since July 1st 2025 but that retrospection has not yet been applied.  The INMO’s position is that the worker should not be penalised because of delays bringing this matter to a conclusion and my task is to consider the claim that retrospection should apply from December 2019.  Considering the issue of delays in the process, I wish to review the timeline from December 2019 until May 2025:

December 2019:  The INMO submitted the re-grading claim for the worker’s role from CNM 2 to CNM 3.

August 2020:  When no progress had been made, the grievance procedure was initiated.

March 2021:  In the absence of progress, a dispute was submitted to the WRC.

March 2022:  In the context of the staffing review, the union agreed to withdraw the dispute.

July – September 2022:  Proposals on the job evaluation process were agreed.

January 2023:  The job evaluation exercise commenced.

June 2023:  The job evaluation outcome was a recommendation to up-grade the role to CNM 3 and for the worker to rotate between days and nights.  The INMO disputed the rotation aspect of the recommendation.

January 2024:  The INMO engaged with the employer regarding the day/night rotation issue.

April 2024:  A meeting took place to examine this issue.

August 2024:  The employer agreed that the worker could remain working on nights only and the INMO accepted the outcome of the job evaluation process subject to this amendment.

May 2025:  The HSE approved the up-grading of the worker’s role to CNM 3 and the back-dating of her salary from May 5th 2025.

July 2025:  Subsequent engagement with the HSE resulted in a proposal to back-date the CNM 3 salary to January 2023.    

Considering the delay from January until August 2020, some account must be taken of the impact of Covid-19, particularly in the health sector.  The pandemic continued to have an effect on normal working life well into 2022, while, at the same time, a new hospital was being commissioned.  After March 2022, when it was agreed that a job evaluation exercise would be carried out in tandem with the staffing review, the plans changed and it was agreed that the review would be carried out under the Framework for Safe Staffing. 

In May 2022, there was direct engagement between the INMO, the employer and the IEHG with regard to the staffing review and that process began in June 2022.  Around the same time, the INMO and the HR director were in correspondence regarding the appointment of the independent consultant to carry out the job evaluation exercise on the worker’s role.  It seems that there was a delay in the summer of 2022 and the final terms of reference for the job evaluation process were not concluded until September.  There was a further delay until January 2023 when the worker completed the questionnaire for the independent assessor and the process got underway then, with the report being produced in June that year.  Nothing happened between June 2023 and January 2024, apparently due to the worker’s concern about the recommendation that she should rotate between days and nights.  It was August 2024 before this issue was resolved and both parties accepted the outcome of the job evaluation exercise.

With the creation of new health regions, the hospital moved out of the IEHG to the DSE region.  In May 2025 the HSE approved the re-grading of the worker’s post and the effective date of payment of the CNM 3 salary.

I have considered this timeline and it is my view that, while it took some time for agreement on the up-grading to be finalised, the back-drop is the Covid-19 pandemic, the development of the new hospital, the staffing review, the transfer to the IEHG and then to the DSE and the organisational changes associated with that migration.  While it may have been possible to avoid some of the delays, I think the responsibility can be shared between the parties.  The process to reach a resolution on the grading issue took longer than expected, but in the context of the events occurring at the time, I am satisfied that the employer should not be held accountable for all the delays and the question of penalisation does not arise.

I have reviewed the decisions of the Labour Court and those of my colleague adjudicators which were submitted by Ms Stenson before and after the hearing of this matter.  While everyone who brings a claim to the WRC can argue for the uniqueness of their case, this worker’s role as a clinical nurse manager is unusual, in that the hospital where she works is not a general hospital, but is focussed on rehabilitation and therapeutic support. 

I note the determination of the Labour Court in LCR 25188, concerning the Rotunda Hospital and the INMO and the remark of the chairman, Ms O’Donnell, that “the court has tended to treat the date of claim as the time when arrears start accruing.”  We know however, from the recommendation in the Letterkenny Hospital case (LCR 22972), that this approach is not always followed. 

In relation to this particular dispute, some consideration must be given to the effect that Covid-19 had on the ability of the parties to bring matters to a conclusion, and to the added organisational challenges brought about by the development of the new hospital and the incorporation of the facility into the HSE.  The decision to re-grade the worker from a CNM 2 to a CNM 3 is related to the change in the working environment associated with the new hospital, the move to single rooms and the increase in staff being supervised.

In the absence of a policy from the HSE regarding retrospection, it is my view that 2022 should be the operative year for the commencement of the worker at the CNM 3 grade.  To bring this issue to a close, I recommend that retrospection should have effect from January 1st 2022.

The Red Circled Allowance

Since 2011, the worker has been paid for working during her “unpaid” break.  Rests and intervals at work are a legal entitlement provided for at s.12 of the Organisation of Working Time Act 1997, a progressive social statute concerned with the health of employees at work.  It is not acceptable to have an arrangement that facilitates an employee not to take a break. 

The worker is now in a CNM 3 role and the terms and conditions associated with her previous CNM 2 position are no longer applicable.  I am satisfied that it will be possible for the management to devise a roster that incorporates two breaks into the worker’s nightly schedule.

I recommend that the effective date of the appointment of the worker to the CNM 3 role is January 1st 2022 and I recommend that the CNM 3 salary should be paid retrospectively from that date.

I recommend that the red circled allowance should cease on December 31st 2025 and that, with effect from January 1st 2026, the worker should be rostered for breaks in the same manner as other CNM 3s on night duty in the hospital.

Retrospection, red circled allowance