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Cite as: [2002] IEHC 88
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Fitzgerald v. South Eastern Health Board [2002] IEHC 88 (30 July 2002)
    THE HIGH COURT
    NO. 2000/11999P
    BETWEEN
    VERONA FITZGERALD, MARY BYRNE, PAULINE O’GORMAN, PATSY BUTLER AND NELLIE FENNESSY
    PLAINTIFFS
    AND
    SOUTH EASTERN HEALTH BOARD
    DEFENDANT
    Judgment of Mr. Justice Roderick Murphy dated the 30th day of July, 2002.
    1. Issue
    The Plaintiffs are ambulance nurses who are now designated as Emergency Medical Technicians following a review of the ambulance service.
    After the publication of the report of the review group on the ambulance service in December, 1993, negotiations were entered into between the Plaintiffs and the Defendant. As a result of these negotiations an agreement was made and entered into between the parties in April, 1995 to the effect that the Plaintiffs, among others, were to be “red circled”. The Plaintiffs claim that this meant that certain conditions required for the new post of emergency medical technician created as a result of the ambulance review would be met by existing ambulance nurses. Certain requirements of the new post would not be required of the existing ambulance nurses.
    These terms and conditions of the agreement reached were set out in a letter dated the 28th April, 1995 from the Defendant. (See 4.5 below).
    The Plaintiffs claim that the Defendant was in breach of the terms and conditions the Defendant requested, on the 10th October, 2000, that the Plaintiffs undertake training for the purpose of obtaining a D1 licence. This followed a Labour Court recommendation (No. 16327) dated the 22nd October, 1999 to which the Plaintiffs were not a party. (See 6.0 below).
    The defendant informed the Plaintiffs that otherwise they would no longer be rostered on ambulance service but would be assigned alternative work in another area of the health service.
    2. Pleadings
    2.1 The Plaintiffs claim an injunction restraining the Defendant from breach of the agreement of 1995. They also claim further injunctive relief restraining the Defendant from de-rostering and redeploying them. They also seek an injunction compelling the Defendant to comply with the terms of the 1995 agreement. Finally they seek damages for breach of contract.
    2.2 The Defendant denies that there was any agreement whereby ambulance nurses including the Plaintiffs were “red circled” as alleged or at all. They deny the construction attributed to that term. The Defendant denies that there was any agreement whereby the Plaintiffs would keep their status as ambulance nurses on the terms set out in the letter of the 28th April, 1995.
    The Defendant contends that the agreement of the 28th April, 1995 provided for a graduated approach to two person crewing of ambulances so as to allow nurses time within which to meet the requirements stipulated in the report of the review group which required each crew member to possess a D1 driving licence.
    “Two person crewing” denotes full interchangeability of crew members. Each member must be able to drive and to provide care for the patient. The Plaintiffs can elect for redeployment or redundancy under the terms of the April 1995 agreement. They will not suffer any alleged or other damage.
    In addition the Defendant says that the Plaintiffs are not coming to equity with clean hands; have failed to mitigate their alleged loss and are guilty of contributory negligence.
    3. Report of the Review Group on the ambulance service
    In relation to ambulance service staffing within the general heading of organisation and management arrangements the report of the Review Group (December, 1993) at 13.4 provides as follows:
    “The Group recommends that each emergency ambulance should be staffed by two trained ambulance personnel with at least one having successfully completed the advanced training programme. Both should have current class D1 driving licences.”
    4. Correspondence
    4.1 By letter dated the 23rd December, 1994 from T. Whelan, A/P Officer of the Defendant wrote to the Assistant General Secretary of the Irish Nurses Organisation, inter alia, as follows:
    “The Board will retain existing named nursing staff who have an existing commitment to ongoing employment. Effectively this would exclude people who are simply covering for existing ambulance nurses on a locum/temporary basis. As opportunities present the Board will move to create positions of ambulance personnel who will be recruited, trained and paid in accordance with the existing terms and conditions of Ambulance Drivers.
    The Board will exercise this right as the named nursing staff described above leave the service for whatever reasons. The said nursing staff will continue to be paid their existing rates of pay and a revised contract will be issued to take account of the pertinent conditions.
    The Board is prepared to proceed on this graduated approach to the introduction of two person crewing on the ambulance service on the strict understanding that the following conditions will be met by the staff concerned.
    “1. The nursing staff concerned will agree to undertake a training programme on patient lifting and are prepared to undertake patient lifting duties as part of their work routine.
    2. Where an ambulance nurse resides in excess of a radius of three miles from the ambulance base that she would be prepared to live-in while on call. The Board is committed to upgrading accommodation where necessary to facilitate this requirement.
    3. Existing nursing staff will also agree to undertake any additional training/refresher requirements which will be decided by the Chief Ambulance Officer. Staff will be released and compensated on the same basis as their ambulance driver colleagues when training is undertaken.
    In effect the Board is prepared to red circle existing staff and while it has to be accepted that replacement staff will be engaged on an ongoing basis to provide for locum cover the said replacement staff will not have any rights in relation to existing or new positions.”
    4.2 By letter dated the 5th January, 1995, the Irish Nurses Organisation sent a memo to all the ambulance nurses in the context of the representations made by them. That memo contained the following:
    “The organisation has always held the view that ambulance nurses in situ must be red circled, and remain in this service until such time as they retire or resign on a voluntary basis.
    I am delighted to inform you that at a meeting held between the organisation and the South Eastern Health Board on December 20th, 1994, the Health Board stated that having examined again the case made by the organisation, they had decided to reverse their previous decision and were now agreeing to the demands of the organisation i.e. red circling.”
    4.3 Two months later, on the 7th March, 1995 the Assistant General Secretary of the I.N.O. wrote to the acting Personnel Officer of the South Eastern Health Board with reference to the Board’s right to make changes to the way in which the services are organised locally it was stated as follows:
    “I wish to draw your attention to the agreement reached between management and this organisation on December 19th, vis-à-vis the red circling of the ambulance nurses positions. We reached this agreement in good faith and obviously we would oppose any deviation from that agreement.”
    4.4 On the 10th March, 1995 the Health Board replied that it might be necessary to alter the way in which the service is organised locally over time which may change the way in which existing staff are engaged. However the I.N.O. was assured that any changes proposed would not be made without consultation.
    4.5 On the 28th April, 1995 the Board wrote to the branch secretary of SIPTU in Clonmel outlining the basis for red circling. The Board intended to create positions of ambulance personnel who would be recruited, trained and paid in accordance with the existing terms and conditions of ambulance drivers. Existing nursing staff who have an existing commitment to ongoing employment would be retained. The letter continued:
    “The Board is prepared to proceed on these graduated approach to introduction of the two person crewing on the ambulance service on the strict understanding that the following conditions will be met by the staff concerned:
    (1) The nursing staff concerned will agree to undertake a training programme on patient lifting and be prepared to undertake patient lifting duties as part of their work routine.
    (2) When an ambulance nurse resides in excess of a radius of three miles from the ambulance base that she would be prepared to live-in while on-call. The Board is committed to upgrading accommodation where necessary to facilitate this requirement.
    (3) Existing nursing staff will also agree to undertake any additional training refresher requirements which will be decided by the Chie fAmbulance Officer. Staff will be released and compensated on the same basis on their ambulance driver colleagues when training is undertaken.
    In effect the Board is prepared to red circle existing staff and while it has to the accepted that replacement staff would be engaged on an ongoing basis to provide locum, cover the said replacement staff will not have any rights in relation to existing or new positions”.
    A list of people associated with the ambulance service for South Tipperary who had ongoing commitments with the Board at the 20th December, 1994 was attached. It was stated that once this was agreed there would be no further additions to the list. Each of the Plaintiffs was listed in respect of Clonmel.
    4.6 A memo dated the 13th July, 1995 of the Irish Nurses Organisation reporting on a meeting, while not evidence of what went on at the meeting, is consistent with the plaintiffs’ understanding of the Health Boards red circling. That memo stated, inter alia, that the Board had stated that driving would not be a prerequisite for future ambulance personnel posts but, in any case training could be provided.
    5. Statutory provisions
    The Health Act, 1970 provides at Section 14 (3) that an officer or servant of the Health Board appointed under this Section shall hold his office or employment on such terms and conditions and shall perform such duties as the Chief Executive Officer from time to time determines.
    Moreover Section 57, dealing with the provision of ambulances, etc. provides as follows:
    “57
    (1) A Health Board may make arrangements for providing ambulances or other means of transport for the conveyance of patients from places in the Board’s functional area to places in or outside that area or from places outside the functional area to places in that area.
    (2) In making arrangements under this section, a Health Board shall act in accordance with the directions of the Minister.”
    Section 2 of the Health (Amendment) (No. 3) Act, 1996 in relation to the performance of the functions conferred in the Health Board provide that the Health Board shall have regard to:
    “(d) Policies and objectives of the Government or any Minister of the Government in so far as they may affect or relate to the functions of the Health Board.”
    6. Recommendation of the Labour Court
    6.1 The reference to the Labour Court in 1999 led to recommendation number L.C.R. 16327 in relation to the integration of nurses in to the ambulance service. The Plaintiffs were not a party to that reference.
    The recommendation referred to the outcome of the national review completed in 1993 which, the recommendation states, required the crewing of ambulances by two personnel, each of whom should be capable of driving if required. It then continues:
    “The Court also accepts that the introduction of this arrangement will require staff who have not previously been required to drive, to acquire that skill if they are to continue as part of the service.
    In the case of those associated with this claim, it imposes a new and onerous condition which they feel unable to fulfil. As in any situation of work reorganisation, a balance must be found between the need to introduce necessary change and the protection of employees who for understandable reasons are unable to adapt to the changes required of them.”
    In the present case, the difficulty is compounded by failure of the two parties to address the issue in the agreement which they concluded in December, 1994. While the union and the Health Board were fully aware of the impending introduction of a mandatory driving qualification, this was not specified in the letter setting out the conditions on which the nursing staff concerned could continue as part of the ambulance service.
    In the special circumstances of this case, the Court considers that the parties should now make a determined effort to agree an accommodation for those nurses who are unable to require the driving skills necessary to meet the requirement of the Department of Health. The Court recommends that the full implementation of the review should be deferred for a period of up to twelve months, during which the nurses concerned would continue to be deployed as heretofore.
    In the interim, the parties should negotiate arrangements by which those who do not acquire a class D1 licence would be redeployed to suitable positions, on their existing pay and conditions, or provided with realistic severance terms.
    6.2 Following on this determination the Health Board wrote to Nurse Butler, one of the Plaintiffs herein, on the 1st December, 1999 advising her that she had been nominated to attend the special Emergency Medical Technician (E.M.T.) course. It is not clear from the letter whether the EMT course included a driving course. It was common case that it did.
    All of the Plaintiffs received such letter and replied on the 10th December, 1999 saying that the Labour Court decision was not binding on each of them; that the issue was resolved on the 28th April, 1995 by letter from the Health Board and that each continued to rely on the terms and conditions regarding “red circling letter” and stated that they would attend the training course on the understanding that each of their contractual rights with the Health Board would not be broken by any training requirements re-acquiring D1 licences.
    7. Case law
    7.1 Reference was made to Methven and Another -v- Industrial Polymers Limited (1980) Industrial Relations Reports 463 at 469B. The issue arose in relation to the Equal Pay Act where Mr. Methven had been given a greater status than female employees on the basis of his age and ill health. The Employment Appeals Tribunal dismissed an appeal by the female employees. The Court of Appeal affirmed their decision. Dunne L.J., one of the three appeal Judges, referred to the simple issue of variation because of age and infirmity. He stated as follows:
    “The simple issue has been unnecessarily complicated by the introduction of factual concepts of “protected wages” and “red circling” which had been sought to be erected into propositions of law, where as they are in truth no more than short hand descriptions of a particular state of affairs. I have noticed that this approach appears from a number of judgments of the Appeal Tribunal in some of the cases which have been cited to us. Unfortunately such expressions mean different things to different people, and to speak of a particular factual situation as “promotion case” or a “red circled case” depends upon what the speaker means by “promotion” or “red circling” and leads to such phrases being construed as if they appeared in the statute, which they do not. (at 369B2C).”
    7.2 Creswell -v- Board of Inland Revenue (1984 2 All ER 713 at 720d and 721 C - J) arose in the context of the Board of Inland Revenue wishing to introduce a system of computer operation for the PAYE scheme. The High Court (Walton J.) held that an employee did not have a vested right to preserve his working obligations completely unchanged as from the moment he first began work, but was expected to adapt himself to new methods and techniques introduced in the course of his employment. The references were made to the change from paper and pen and from audio typing to word processing.
    The affect of the Board’s computerised system was not that the Plaintiffs would be doing a different job be merely that they would be doing recognisably the same job in a different way.
    7.3 In Rafferty, Ward and the National Bus and Rail Union -v- Bus Eireann/Irish Bus (1997) I.R. 424 at 442 (per Kelly J.), the Court held that the employee did not have a vested right to preserve his working obligations completely unchanged from the moment that his contract of employment began; rather an employee was expected to adapt to new methods and techniques introduced in the course of his employment.
    In so holding, following Creswell -v- Board of Inland Revenue Kelly J. asked:
    “Is the effect of the change promulgated by the Respondent such as to result in the bus driver doing a different job or is it merely to bring about a situation in which he would be doing recognisably the same job in a different way? If it is the former and is less beneficial to the employee it is unlawful without the consent of the trade unions pursuant to section 14 subsection 5 of the Act of 1986. If the latter, it is merely a change in work practice (and) does not attract the statutory protection and is lawful.”
    7.4 The Supreme Court in Coonan -v- Attorney and Ireland (2001) E.L.R. 305 at 315, per Murphy J., stated in relation to the continuance in office of a State Solicitor after the age of 65 as follows:
    “It may be arguable, as originally suggested by Mr. Condon, that the Attorney General was contractually obliged to renew subject only to health problems but I am inclined to the view that that is not a correct interpretation, having regard to the use of the word “may”. I find it difficult to follow how the word “may” in the context could connote merely an enabling provision in this exercise. One is not construing a statute or a statutory instrument and it would be absurd to suggest that Mr. Coonan could enable the Attorney General to do something. I am satisfied, therefore, that over and above the health question the Attorney General does have a residual discretion which could be exercised against renewal in particular circumstances and in a particular case. But I am in complete agreement with the more modified contractual argument to the effect of the Attorney General was not entitled to introduce a blanket policy. While I say that he was not entitled to do so, I mean he was not contractually entitled to do so. Obviously, the Attorney General can have any kind of policy and, indeed, such a policy may well have been very sensible, but he may, in any given incidence, be precluded contractually from implementing it.”
    This case was advanced by the Plaintiffs as a basis for the Health Board being estopped from denying what they had agreed in 1995.
    8. Decision of the Court
    8.1 The issue which arises in this case is whether the “red circling” gives the Applicants the contractual right to no change in their work practices; whether the Health Board has a right to determine the method by which the Applicants carry out their work in the ambulance service and, if so, whether the change in the work practices amounts to a fundamental change. The issue of legitimate expectation arises by way of a background and it may be appropriate to deal with this matter first of all.
    In Coonan -v- The Attorney General (2001) E.L.R. 305, the Supreme Court (Murphy, Geoghegan and Fennelly JJ) found it unnecessary to consider the principles of estoppel or legitimate expectation and held that the Respondent was entitled to succeed on foot of his contract with the Attorney General. Counsel for the Attorney General in that case had argued forcefully by reference to case law that the doctrine of legitimate expectation had no place in private law but only in public law. (See 314 per Geoghegan J). As the Plaintiff was entitled to succeed on foot of his contract it was not necessary for the Supreme Court to consider the application of the principle of estoppel which had been the basis of Carroll J’s decision in the High Court. Mr. Coonan was the State Solicitor appointed by the Attorney General. The acceptance of the finding on the basis of legitimate expectation would have extended this doctrine into employment law which would fetter the actions of the State with regard to exercising its discretion on such matters. The Plaintiffs have pleaded that the Defendant is “estopped from reneging on its obligations under (the 1995) agreement.”
    Employment law is essentially contractual in nature. In addition to the expressed terms being negotiated between parties - whether in public or private employment - there are, of course, the implied terms of the employment legislation which have grown substantially in the last three decades.
    The issue of “red circling” involves an imprecise negotiation term that does not occur in such legislation. It seems clear to this Court that the decision in Methven and Another -v- Industrial Polymers (1980) I.R.P. FR 63 at 469B, to the effect that such phrases should not be constructed as if they appeared in the statute, is apposite.
    The legislation governing the employment of the Plaintiffs in this case is clearly that of the Health Acts and, in particular Section 14(3) of the Health Act, 1970, Section 57 and Section 2 of the Health (Amendment) (No 3) Act, 1996 cited at paragraph 5 above.
    It is clear that the terms and conditions on which the Applicants hold their office are those determined by the Health Board and include the duties determined from time to time by the Chief Executive Officer of that Board.
    The scope of employment for Emergency Medical Technicians are dealt with by Section 57: the provision of ambulances or other means of transport for the conveyance of patients from places in the board’s functional area to places in or outside that area or from places outside the functional area to places in that area. While the Plaintiffs in this case properly consider themselves as professionally qualified nurses, which they are, their occupation is as Emergency Medical Technicians in providing transport for the conveyance of patients. The Board, in negotiating with nurses in the ambulance service have made provision for those who do want to alter their terms and conditions to include driving, to be employed otherwise as nurses. Once they have accepted the occupation of Emergency Medical Technicians then, it would seem to follow that whatever “red circling”, that may have been involved in negotiation for whatever period, that the Board and, more particularly, the Chief Executive Officer may require them to perform duties within the area of providing conveyance, with due medical emergency care.
    It is clear from the authorities that changes in work practice within the general objective of work are, not alone permissible, but also appropriate. The operation of a computer system in Creswell, for example, required different skills and, no doubt frustration that the older generation feel with the new technology.
    This was echoed by Kelly J, in Rafferty, Ward and the National Bus and Rail Union -v- Bus Eireann/Irish Bus (1997) I.R. 424 at 442 where the question was posed as in 7.3 above: is it a different job or is it doing the same job in a different way. This, of course, depends on the point of departure. From the Plaintiffs’ point of view they consider themselves as nurses though not occupied as such: their occupation which they have accepted under the ambulance review is that of Emergency Medical Technicians. They, of course, believed that the “red circling” would enable them to continue the work practices that they had theretofore undertaken.
    From the Defendant’s point of view they are, since, 1995. If they are, as I believe, now Emergency Medical Technicians, who have been excused driving until they have had an opportunity to learn. They must necessarily comply with instructions given within that objective. It does seem to me that they being asked to do the job of Emergency Medical Technicians that is to say they are sharing the duties undertaken by ambulance drivers who, undoubtedly, have had to retrain into areas in which they did not work beforehand. There was no evidence that the derogation implicit in red circling be permanent. The Health Board personnel perform such duties as the C.E.O. from time to time determine (Section 14(3) of the Health Act, 1970. Moreover, the function of the ambulance service, contained in Section 57(1) of that Act relates the provision of ambulance or other means of transport for the conveyance of patients. Of course, Emergency Medical Technicians are not only conveyors but are medical carers.
    In the circumstances and without in any way taking away the professional role of the ambulance nurses in the past, I must refuse the grant the reliefs sought.

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