The Court of Appeal, in Earley v Health Service Executive (“HSE”) IECA 158, has recently overturned a High Court decision and granted a declaration to the effect that the re-assignment of the plaintiff from her role, as Area Director of Nursing, Mental Health Services for the Galway/Roscommon area to Area Director of Nursing with the Programme Management Office of the National Mental Health Division of the HSE, constituted a breach of contract.

Background

The re-assignment of Ms Helen Earley was as a result of a decision by the HSE to commission a review of its Mental Health Services in Roscommon following a number of complaints and a protected disclosure to the HSE. Some of the complaints alleged there had been a number of incidents in the Galway/Roscommon area which had not been dealt with appropriately by senior HSE staff. 

Ms Earley initiated proceedings in the High Court claiming that the re-assignment amounted to a breach of contract and that, given the nature of the allegations made, it affected her reputation and good name.  

High Court 

The High Court found that the decision of Rafferty v Bus Eireann 2 I.R. 424 which stated that “at common law an employee is not required to do a fundamentally different job from that contracted for” was not applicable to this case. It held that the re-assignment did not constitute a fundamentally different job as Ms Earley was not required to carry out duties unrelated to her qualifications, experience or status nor was the re-assignment to an inferior role. 

The High Court found that there was no bad faith by the HSE in arriving at its decision to re-assign the plaintiff while the review and screening of complaints were carried out and rejected the argument that the re-assignment was in breach of her conditions of employment. The High Court also found that the plaintiff had failed to establish any loss of reputation or status. 

Court of Appeal 

The Court of Appeal overturned the High Court decision and found that there was no basis by which the Ms Earley could have been lawfully re-assigned from her position. 
The Court of Appeal reviewed the plaintiff’s contract of employment and found that there was no express contractual right allowing the HSE to re-assign.

In determining whether there was an implied term to re-assign under the contract, Hogan  J. referred to Sweeney v Duggan 2 I.L.R.M. 211, which stated that a term cannot be implied if it is inconsistent with the express wording of the contract. The Court of Appeal found that, in this case, the implied term claimed by the HSE was inconsistent with the express wording in the contract of employment. The Court of Appeal established that in re-assigning the plaintiff from an operational and clinical role to a non-operational role, the HSE had acted in a manner which contradicted its contractual commitments. The Court of Appeal, therefore, held that there was no basis for an implied right to re-assign the plaintiff and the re-assignment amounted to a “plain breach of her contract of employment”, irrespective of the temporary nature of the re-assignment and the fact that her remuneration remained unchanged.

Conclusion

In light of this decision, employers should be mindful that they may not be able to rely on an express contractual term which does not specifically address the re-assignment of an employee or an implied contractual term which is inconsistent with the wording of the employment contract, as the basis for a lawful re-assignment.  

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