Moves to abolish top-up payments could lead to legal challenges

Moves to abolish top-up payments currently paid to dozens of senior personnel across the voluntary hospital and health agency sector could lead to legal challenges in the weeks and months ahead.

Voluntary hospitals and agencies have been given until July 1st to make arrangements to end the payments where business cases for retention have not been upheld.

They have to tell the Health Service Executive (HSE) of their proposed course of action by May 16th.

However, some of these payments date back to the 1980s and employment law experts yesterday said they could be subjected to legal challenge.

This is because of the duration of the allowances and the absence of any reasoning in the HSE’s rejection of the business cases, as well as the fact that the allowances are not being cut under specific legislation such as the Financial Emergency Measures in the Public Interest Act that governed other public-service pay cuts.

In a six-page report, hospitals and health agencies have been told that it is up to them and not the HSE and the Department of Health "to take ownership" of the implementation of the decisions to abolish these payments.

Mitigating risk
The HSE said each employer should take advice prior to implementing the changes "so that it does so in a legally compliant manner and/or mitigating risk to the greatest extent possible".

The HSE said the principal ways in which allowances could be removed included receiving the agreement of the employee; determining if the payment was discretionary and not contractual; seeing if it was time-specific or whether it was governed by the right of the employer to remove it; or assessing whether it related to a specific duty and if this was still carried out.

Reviewing business cases
In many cases allowances earmarked for abolition by the HSE are not paid to administrators but to clinicians.

The report said: “In reviewing business cases received in respect of additional remuneration/allowances for consultants/clinicians, not in line with the consultant contract or the Department of Health consolidated salary scales, it has been decided that these allowances are not appropriate and should cease to be paid in line with the time frame set out in the report.

“In addition it is recommended that, to ensure continued patient safety and quality of service delivery, as a matter of priority in the period available up to 1 July, a process to review the appointment of clinical directors throughout the health service is conducted under the auspice of the national director of acute hospitals in consultation with the hospital group chief executive officers and the chief clinical directors in each hospital group.”