The High Court ruled that the Health Service Executive breached Catherine (otherwise known as Triona) McNamara’s contract when it extended her five-year career break by 12 months. The court declared that she was entitled to resume her position as a Consultant Orthodontist with the HSE from 7 July 2008, on the terms of her contract.
Ms McNamara had worked as a Consultant Orthodontist at St James’s Hospital after joining the Eastern Health Board in 1996. Her employment later transferred to the HSE. A 2003 compromise of earlier judicial review proceedings provided for a five-year career break, but the agreement was not written down. The parties disputed whether the break was unconditional or subject to the usual career-break scheme terms.
The judge found that the compromise entitled Ms McNamara to return to her position after five years and that the HSE could not unilaterally extend the break. The court rejected the HSE’s reliance on a 1987 departmental circular allowing re-employment within 12 months where no suitable vacancy arose. The judge said the relevant term had not been brought to Ms McNamara’s attention and was not included in the documents supplied to her when she completed the career-break form.
The HSE had told Ms McNamara in June 2008 that no suitable vacancy was available in Dublin Mid-Leinster and extended her break while seeking one. It later offered posts in Kerry, Crumlin and Limerick. She declined them, arguing that the Kerry and Limerick posts were outside her contractual area and that the Crumlin role was a Specialist Orthodontist post at a community clinic, rather than her consultant role at a hospital.
The court did not find that Ms McNamara had a contractual right to work specifically at St James’s. Her contract allowed the employer to determine her duties and their location, provided the duties were appropriate to her consultant position. The judge said her contractual area corresponded to the former functional area of the Eastern Health Board. An addendum corrected the judgment’s initial reference to the Dublin Mid-Leinster region, which the judge said did not correspond to that former area.
The court declined to grant an injunction, finding it an inappropriate way to enforce an employment contract. It made a declaration recognising her right to resume her position from 7 July 2008. The judge noted an undertaking to pay the salary difference for the period from 7 July to 1 August 2008 and made no order for that sum. No other evidence supported special or general damages.