The HSE unilaterally stopped issuing fines for breaches of NCHD working hours after the Covid-19 emergency period. Brian O’Flynn reports
The HSE did not record fines to hospitals for breaching rules around NCHD working hours between March 2022 and December 2022, despite IMO expectations that financial penalties would be issued for this period.
Prior to the Covid-19 pandemic, the HSE fined hospitals for breaches of the European Working Time Directive (EWTD), which states that no employee should work more than an average of 48 hours per week, among other rules. Fines were issued to individual hospitals on a pro rata basis, proportional to the severity of their monthly breaches, and paid to the HSE.
In March 2020, this system was suspended for a two-year period due to the extraordinary pressure on the health service during the Covid-19 emergency. According to the IMO, it was then expected that the process of monitoring and application of fines would resume after March 2022.
In late 2022, a new agreement around NCHD working conditions was reached by the IMO and health management following prolonged negotiations and threats of industrial action. The agreement stated that the IMO, the HSE, and Department of Health would agree to a new “transparent” EWTD monitoring, verification, and sanctions process.
However, the HSE still has no records of fines owed by hospitals for the nine-month period from April to December 2022, when negotiations on the new agreement were ongoing and the Covid-19 emergency had ended. The IMO said it was not consulted on the decision to allow the fines to lapse during this period of negotiations.
The old system
In 2013, following one-day strike action by IMO NCHDs and talks at the Labour Relations Commission, the IMO and health management agreed to a system of annual fines which were intended to incentivise compliance with the EWTD. This system was overseen by the EWTD national verification group.
Before March 2020, the national verification group carried out a schedule of hospital visits to support its monitoring of compliance with the rules. Local EWTD implementation groups also met at hospital level. These local groups were supposed to meet regularly and have an input into rostering.
As reported in The Irish Mail on Sunday, fines totaling €1.3 million were issued to hospitals for EWTD breaches in respect of the first nine months of 2019. Six of the seven Hospital Groups incurred penalties, with Dublin Midlands Hospital Group being the exception.
During the official suspension of fines between March 2020 and March 2022, hospitals continued to submit to the HSE monthly data on compliance with the provisions of the EWTD. However, the verification group was paused, so effectively no monitoring or hospital visits took place, and no fines were issued in respect of that period. This suspension ended in March 2022.
The HSE said the verification group was nominally ‘reinstated’ in early 2022 and held its first meeting in May 2022. The Executive also stated that local EWTD committees were instructed to reconvene at hospital level. However, documents released under Freedom of Information reveal that no hospital visits by the verification group took place, and no fines were recorded or issued, for the duration of 2022.
According to the IMO, it was not consulted on the decision to allow the fines to lapse beyond March 2022.
A revised verification system
In December, following extended negotiations between the IMO, HSE, and Department of Health, IMO NCHDs voted to accept a new agreement on working conditions, which came into force in 2023. Details of a revised verification system for working hours are still being discussed between the HSE and IMO.
Under the agreement, there will be a new system for monitoring, calculating, and verifying fines due by hospitals. Speaking to Medical Independent (MI) earlier this year, current IMO President and former NCHD committee Chair, Dr John Cannon, said fines were previously paid “into HSE coffers, and so weren’t really punitive”.
Under the new system, fines will not be returned to the HSE, but will be redirected into funds to benefit the NCHDs who endure the breaches, including schemes to support medical students from disadvantaged backgrounds.
The IMO is expected to have a more central role in monitoring compliance and fines under the new system. While the IMO officially had a presence on the national verification group under the old model, Dr Cannon said the Organisation had no direct line of sight into the verification process, how it was being administered, or how the fines were being calculated or distributed.
A longstanding concern of the medical representative body is that HSE data on NCHD working hours has suggested much greater EWTD compliance than reported by its members. Under the new agreement, the HSE has committed to the introduction of an electronic attendance system across all sites. More broadly, however, there is concern among NCHDs and the IMO about the level of implementation of aspects of the new agreement, particularly in respect of new rostering rules.
The HSE claimed it did not record any fines due by hospitals in 2022 because of the ongoing negotiations with the IMO on the new agreement.
“The EWTD verification group was paused during the pandemic and was reinstated earlier [in 2022]. As a result of the subsequent industrial relations talks with the IMO and the HSE/Department of Health, a decision was made to further pause site visits pending conclusion of these talks,” said a HSE spokesperson in an initial statement.
“In 2023, in the context of the new agreement, the IMO and the HSE/Department of Health will be reviewing the approach to compliance monitoring to ensure a transparent monitoring, verification and sanctions process is in place.”
However, the IMO never entered into any agreement to allow the previous system of fines to lapse during the months of negotiations. “The IMO did not agree to a suspension of fines after the special provisions during the Covid period ended,” said its spokesperson.
According to the IMO, its understanding was that the system of fines and monitoring would resume as soon as the Covid-19 suspension period ended in March 2022.
Dr Cannon said the system that existed under the 2013 agreement should still have been applicable while the negotiations for the new agreement were ongoing.
“That system should have been reactivated once the Covid suspension period ended and should have continued to run in parallel with our talks, since our talks may not have resulted in a new agreement,” he told MI. “Luckily, they have [resulted in an agreement]. If talks had collapsed, the current agreement from 2013 would still stand. It was our understanding that the fines system was only suspended to meet the needs of the nation.”
The HSE did not respond to specific questions about who was consulted on the decision to continue the pause in 2022. It is unclear whether any fines will be paid in respect of this nine-month gap.
In a later statement to MI, the HSE stated: “The HSE (National Employee Relations and Acute Operations) are continuing to engage with the IMO on the matter of EWTD, inclusive of the verification and sanction process. This element of discussions has not yet been finalised between the parties. It remains the case that no fines have issued.”