A senior executive with the HSE has won her appeal over a decision to temporarily reassign her while a review into allegations of sexual abuse and alleged cover-up at mental health facilities in Roscommon was being conducted.
Under the terms of her contract of employment, the HSE was not entitled to re-assign Helen Earley, the area director of nursing for Galway-Roscommon mental health services, to a different and non-clinical role within the organisation, the three judge Court of Appeal ruled.
It said it would grant a declaration to that effect but adjourned the matter to later this month to allow the sides consider the judgment and whether to seek other reliefs.
While Ms Earley was never subject of any investigation or disciplinary process, the HSE said it moved her temporarily in July 2015 because of several investigations concerning facilities for which she had responsibility.
The re-assignment came after the Mental Health Commission (MCH), which regulates HSE provision of mental health services, raised very serious concerns with the HSE about the welfare of some service users in Roscommon and the response of local management to certain incidents.
Alleged offences
The Nursing and Midwifery Board of Ireland had also informed the HSE it had notified the Garda concerning the withholding of information on alleged offences against children and vulnerable persons within the service.
There were also concerns about the alleged sexualised behaviour of a service user of a facility, allegations concerning a member of medical staff, anonymous complaints and claims of a cover up.
Shortly after being informed of the transfer, Ms Earley, represented by Oisin Quinn SC, instructed by MacSweeny & Company Solicitors, took High Court proceedings aimed at halting it. She alleged the HSE breached the terms of her contract of employment by re-assigning her and the proposed move would adversely affect her reputation.
After the High Court dismissed her action, she appealed.
In their judgment on Monday, Ms Justice Mary Finlay Geoghegan, Mr Justice Michael Peart and Mr Justice Gerard Hogan allowed the appeal.
No breach
Giving the court’s decision, Mr Justice Hogan said the High Court erred in concluding the HSE had not breached Ms Earley’s contract of employment by reassigning her from the operational and clinical duties specified in her contact to non-operational duties.
The re-assignment constituted a breach of her contract of employment and there was simply no basis under which which Ms Earley could lawfully be reassigned from her position, he ruled.
That finding was not affected by the fact Ms Earley’s pay was not altered by the change or because the re-assignment “was expressed to be a temporary one”, he said. It was clear she had been appointed to a particular position which had clinical and managerial responsibility.
The judge noted the review of Roscommon’s mental health services which began in 2015 was initially thought to take a few months but the time frame for delivery of a report by the reviewer had been extended. The appeal court was told last month the report is “imminent”, he said.