A doctor in the HSE's addiction services who is challenging his forced retirement at age 65 has got High Court injunctions allowing him return to work.
Mr Justice Paul Gilligan said Dr Paul Quigley, who turned 65 on October 19th last, must be permitted to return to work "forthwith".
The orders apply pending the full hearing of Dr Quigley's action against the HSE, a date for which has yet to be fixed.
The judge granted the injunctions for reasons including he considered Dr Quigley had made out a "strong" case likely to succeed at the full hearing.
Dr Quigley joined the HSE in 1998. He claimed he faced a three quarters cut in salary if forced to retire, because he only entered the superannuation scheme in 2006. He had arranged his financial affairs on the basis he could continue working at 65 as others within the addiction services had done, the court heard.
Represented by Marguerite Bolger SC, he argued, among other claims, the termination of his contract at age 65 was invalid as the contract was not subject to a maximum retirement age and contained no provision, implied or otherwise, preventing him working beyond 65. He also claimed other doctors in the addiction services had continued working beyond 65.
The court heard some 75 others, out of 50,000 HSE "officer grade" employees similar to Dr Quigley, are working beyond 65.
In his judgment, the judge noted sworn evidence from two other doctors employed by the HSE, also specialising in substance abuse, that others in the service worked beyond 65 was not contradicted in any significant way by the HSE. There was also no dispute that Dr Quigley is medically fit to do his duties.
The "net issue" was whether or not Dr Quigley's employment was governed by a 2001 contract negotiated by the Irish Medical Organisation. That contract provided for an indefinite period of employment which, for at least two fellow employees of Dr Quigley's in the area of substance abuse, allowed them work beyond 65.
If, as the HSE contended, it was known throughout the HSE doctors signing the 2001 contract would have their employment terminated by retirement at age 65, it would have been reasonable to have set that out, but it was intead quite clear the contract was for "an indefinite period".
Dr Quigley had made out a strong case on that basis which is likely to succeed, he found.
The judge also said it was not necessarily the situation that permanent officers employed with the HSE all retired at the age of 65. While some did, some could have their period of employment extended by the Minister for Health while persons entering employment after the Public Service Superannuation Act 2004 were not bound by a retirement age of 65.
Damages would not be an adequate remedy if the injunctions were refused and Dr Quigley won his action, the judge also held.
This was because of Dr Quigley's 19-year employment with the HSE and the "very high" medical standing he has attained in his work.
If Dr Quigley could not carry out his daily duties and was without a salary, he would suffer a loss of professional prestige and standing for which monetary compensation would be inadequate.
The balance of convenience also merited the injunctions because Dr Quigley remaining on in the "difficult area" of substance abuse would benefit patients.
If the HSE was so well aware the doctor had to retire on his 65th birthday, it would have been reasonable to put in place necessary procedures to employ a replacement, but that had not occurred and the intention was to retain an agency doctor, he noted.
After his judgment, the judge made directions for exchange of legal documents for the full hearing and returned the case for mention on December 19.