The High Court has restrained the Health Service Executive from implementing six-month unpaid suspensions imposed on two Ballydowd Special Care Unit employees, pending the trial of their action against the HSE.
In an interlocutory ruling on 1 September 2008, Ms Justice Laffoy found there was a fair issue to be tried over whether the disciplinary procedure’s precondition for a Stage 4 hearing had been met: a finding of serious misconduct against each employee. The order defers the penalties; it does not decide the underlying action.
The employees, Stephen Doherty, a social care worker, and Anthony Carroll, a general attendant, challenged penalties imposed after an investigation into events at Ballydowd on 9 February 2007. The HSE’s investigator, Conal Devine, found breaches of duties of care and statutory obligations. He concluded for each employee that it was “as likely as not” that the behaviour amounted to serious misconduct. The judge said the report’s wording gave rise to difficulties about whether serious misconduct had actually been found.
The employees argued that without such a finding the HSE could not convene Stage 4 disciplinary hearings or impose sanctions under its procedure. The HSE maintained that the investigator had found serious misconduct and argued the employees were barred from challenging the disciplinary process because they had participated in it. The judge rejected the estoppel argument for the purposes of the application. She also said the HSE could not impose the sanctions under the procedure if the necessary finding had not been made.
Following separate hearings in July 2008, Assistant National Director Hugh Kane imposed six-month unpaid suspensions. Pat Dunne upheld the decisions on appeal. The employees also raised concerns about the severity of the sanctions and delay, but the central issue in the injunction application was whether the investigator had made the required finding.
The judge concluded that the issue required a trial. She found that the harm from wrongful implementation, in light of the employees’ personal and family circumstances and their continued employment, could not be adequately compensated by damages, and that the balance of convenience favoured an injunction. The HSE was therefore restrained from implementing the unpaid suspensions pending trial, on the employees’ undertakings as to damages.