The Court of Appeal has ordered the Health Service Executive to restore Helen Earley to her contractual post as Area Director of Nursing for Mental Health Services in the Galway/Roscommon region, after finding that her reassignment breached her employment contract.
The injunction was made in a further hearing about what remedy should follow the court’s earlier ruling. In its first judgment, delivered on 15 May 2017, the Court of Appeal declared that the reassignment from the operational and clinical nursing duties set out in Ms Earley’s contract amounted to a breach. It had invited further submissions on whether additional relief was needed.
The HSE argued that Ms Earley’s remedy was an action for damages. Her counsel said that would be ineffective because she had suffered no financial loss, and sought an order returning her to her post.
In the judgment delivered on 18 July 2017, Mr Justice Gerard Hogan said this was not a wrongful dismissal case: Ms Earley had not been dismissed or disciplined, and the HSE had said the reassignment was not disciplinary. The judgment also noted that there had been no disciplinary findings against her. The reassignment was described as temporary, and had not reduced her pay.
Ms Earley was appointed to the senior post in November 2012. On 1 July 2015, she received a letter saying she would be temporarily reassigned to the Programme Management Office of the HSE’s National Mental Health Division. The change took effect on 6 July 2015, when Brian O’Malley was appointed Acting Area Director of Nursing.
An interlocutory injunction granted by the High Court in July 2015 prevented the HSE from implementing the reassignment pending the action. After the High Court found the reassignment lawful in November 2015 and refused relief, that injunction lapsed and the reassignment took effect. The Court of Appeal later held that the High Court had erred in finding no breach of contract.
The Court of Appeal said there was no tangible evidence that restoring Ms Earley to her post had become impossible or inappropriate. Without a further order, the earlier declaration risked being only a theoretical remedy, the judgment said. It therefore directed the HSE to restore her to the contractual position. The judgment said her tenure in the post remains subject to her contract.