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Labour Court declines to direct HSE to pay allowance to GP trainees on maternity leave

By Catherine Reilly - 21st Dec 2023

The Labour Court has declined to direct the HSE to pay an out-of-hours allowance to GP trainees on maternity leave. It recommended that the IMO accepts a HSE proposal that the dispute is considered during NCHD contract negotiations. The position was reached by the Labour Court last month.

The claim was taken by the IMO on behalf of GP registrars.

Under the NCHD contract, GP registrars are entitled to allowances for out-of-hours work and travel expenses.  The IMO has stated these are fixed allowances, which are payable to employees on maternity leave under HSE terms and conditions.

The main allowance, which is for out-of-hours work, is worth approximately €11,500 per annum.

The IMO sought the Labour Court to direct the HSE to pay the allowance to GP trainees when on maternity leave, and retrospectively pay those denied the payment to date.

In support of its position, the IMO stated that the purpose of the allowance was to address the gap in pay scales between GP trainees and specialist/senior registrars. The union said it was a normal fixed allowance and treated as such for pay and pension purposes. Furthermore, it was subject to a 5 per cent reduction as a ‘fixed periodic allowance’ under the ‘Financial Emergency Measures in the Public Interest’.

The HSE acknowledged the allowance was fixed but asserted that it was “not encompassed by the existing maternity rules as it is based on potential overtime earnings forgone”. According to the HSE, the allowance was introduced to compensate GP registrars for lack of access to potential earnings when in a general practice setting. “NCHD registrars in a hospital setting do not receive any payment corresponding to lost overtime earning when on maternity leave, and to concede the claim would be unfair and inequitable to those NCHDs,” according to the HSE position outlined in the Court determination.

The HSE further submitted that the claim was a cost-increasing claim and prohibited under the Building Momentum Agreement.

The Court accepted that the out-of-hours allowance was a fixed payment. “While the parties conveyed different positions to the Court regarding the genesis of the out-of-hours allowance incorporated into the NCHD contract in 2010, it is clear that the contract of employment expressly states that the allowance is paid ‘in respect of out-of-hours work’,” according to the Court.

“The Court notes that the HSE/Department of Health and IMO have agreed to commence discussions on a new NCHD contract of employment. The Court further notes that the HSE is willing to review the current practice of disallowing the out-of-hours allowance in the calculation of maternity pay. Having regard to the submissions made, the Court is of the view that the best approach to resolving this dispute is in the context of such discussions.”

The Court further recommended the matter of retrospection be considered in the context of those discussions.

As previously reported by the Medical Independent, the HSE’s non-payment of allowances to GP registrars on maternity leave was affecting trainees in some, but not all, GP training schemes. The IMO also reported that trainees in some schemes had been asked by the HSE to sign a waiver to forgo the receipt of the allowances while on maternity leave.

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