Labour Court Database __________________________________________________________________________________ File Number: AEE9011 Case Number: DEE914 Section / Act: S21EE Parties: SOUTHERN HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Equality Officer's Recommendation No. EE15/1990 concerning a claim that the Board discriminated against three male psychiatric nurses in relation to promotion.
Recommendation:
7. The Court accordingly holds that the Southern Health Board did
not discriminate against the claimants and accordingly rejects the
appeal against Equality Officer's Recommendation No. EE15/1990.
Division: Ms Owens Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
AEE9011 DEE491
EMPLOYMENT EQUALITY ACT, 1977
SECTION 20(1)
PARTIES: SOUTHERN HEALTH BOARD
(REPRESENTED BY THE LOCAL GOVERNMENT STAFF NEGOTIATIONS BOARD)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Equality Officer's Recommendation
No. EE15/1990 concerning a claim that the Board discriminated
against three male psychiatric nurses in relation to promotion.
BACKGROUND:
2. In the Psychiatric Service, there are two situations where
vacancies to appoint psychiatric nurses at supervisory level arise -
(a) where there is a permanent vacancy resulting from
resignation or retirement,
(b) where there is a requirement to appoint a person to
"act-up" in a post on a temporary basis while the
permanent post holder is on sick leave, annual leave, etc.
In the past, nurses were appointed to fill the vacancies created
by the above mentioned circumstances under a seniority system.
This system operated on the basis of a panel, a nurse's place on
the panel being determined by his/her continuous service with the
hospital; the highest placed nurse on the panel being promoted to
the next vacant supervisory post. These panels were sex-
segregated i.e. there was a male panel and a female panel as
supervisory posts were classified by sex. When the Employment
Equality Act, 1977, came into operation, the sex-segregated panels
were not discontinued due to the provisions of Sections 17(2)(c)
and 17(2)(d) of that Act. These Sections were subsequently
repealed in 1982, and an Equality Officer's Recommendation (No.
EE14/1983) issued in May, 1983, recommended that:
(i) "... dating at least from the repeal of Section 17(2)(c)
and 17(2)(d) of the Act in September, 1982, by Statutory
Instrument 302 (1982) the practice of classifying jobs
by sex of worker constitutes a contravention of Section
2(a) and 3 of the Act..."
(ii) "... the practice of promotion on the basis of sex-
segregated panels is contrary to the provisions of
Section 2(a) and 3 of the Act..."
The Equality Officer recommended that there should be immediate
discussions on a new system of promotion which would comply with
the provisions of the Act.
3. Discussions on a new system of promotion commenced in the
Autumn of 1983, within the ambit of a joint management/union
forum. Permanent appointments to supervisory posts were suspended
with effect from 30th September, 1982. In the interim, nurses
were appointed to fill vacant permanent supervisory posts in an
"acting" capacity under the old system. Following discussions the
forum made proposals which included the holding of a once-off
confined transitional competition in each psychiatric hospital to
fill permanent supervisory nursing posts vacant from 30th
September, 1982, to 2nd February, 1987, and compensation in the
form of a 90% allowance for nurses who had acted up in these
positions during this period but were unsuccessful in the confined
competition.
4. The confined competitions were advertised in February, 1987,
but were deferred pending the outcome of claims being pursued by
the Union for compensation for those within the Psychiatric
Service who had an expectation of promotion under the old system
(in theory this included every nurse) and the permanent
appointment, without competition, of nurses who had been placed in
unsanctioned supervisory posts prior to September, 1982. The
Labour Court did not recommend that compensation for loss of
promotion be paid to any nurse other than those who qualified for
the 90% allowance offered but recommended that as many as possible
of the posts should be filled by competition as soon as possible.
The Court also recommended that the Union accept management's
offer of an allowance of 90% of the rate of the promotion post for
nurses who had acted in the posts but were unsuccessful in the
competition. (L.C.R. 11528 refers). The competitions were
re-advertised in May, 1988 and interviews were held in June, 1988,
with the first appointments being made in late July, 1988. The
90% allowance was paid to those who had been acting-up and were
displaced by the successful applicants. None of the three
claimants here concerned were successful in the competition and as
they had not been in acting-up positions they did not receive the
90% allowance. Due to the more rapid turnover of female nurses on
the female panel, female nurses with less service than the
claimants had acted-up in supervisory posts within the September,
1982, to February, 1987, period and those who were unsuccessful in
the competition received the 90% allowance.
5. On 3rd January, 1989, the Union referred a complaint to the
Labour Court, for investigation by an Equality Officer, that the
Board was discriminating against male psychiatric nurses in
relation to promotion. The Union argued that prior to the change
in the promotion system, the system had allowed for more
opportunity for females and therefore discriminated against males
and subsequently denied them access to the 90% allowance. The
Equality Officer in Recommendation No. EE15/1990 found that the
Board did not discriminate against the claimants (see Appendix 1).
The Equality Officer's Recommendation was rejected by the Union
who appealed it to the Labour Court under Section 21(1) of the
Employment Equality Act, 1977. The Court heard the appeal on 27th
June, 1991, in Cork. The Union's and Board's submissions to the
Court are contained in Appendices 2 and 3 respectively.
FINDINGS
6. By letter dated 5th November, 1990, the appellants lodged an
appeal against the Equality Officer's Recommendation No.
EE15/1990.
The Board contends that it is not a valid appeal in that it seeks
to have matters determined by the Court which were not the subject
of investigation and recommendation by an Equality Officer.
The Court having considered this contention deems it advisable to
make a determination, as whilst the appellants did raise new
issues, it is obvious that they all relate to, or derive from, the
matters dealt with in Equality Officer's Recommendation No.
EE15/1990.
The Court has examined in detail the submissions made by the
appellants and by the respondent, the Equality Officer's
Recommendation, a previous relevant Labour Court Recommendation,
and the Judgement of the Hon. Mr Justice Costello in the case of
Murphy v Minister for Health and others. [10th December, 1987].
The Court is satisfied that the Equality Officer in Recommendation
No. EE15/1990 came to the correct decision for the following
reasons.
(a) The system of promotion in psychiatric hospitals prior
to 1982 has been found to be illegal. The Equality
Officer in Recommendation No. EE14/1983 recommended "that
there should be immediate discussions" on a new system of
promotion which would comply with the provisions of the
Employment Equality Act 1977.
These discussions extended over a period of 6 years and
culminated in Labour Court Recommendation No. LCR11528.
(b) No evidence has been submitted that the competition for
the filling of permanent posts in 1988 discriminated
against the claimants on the basis of sex or marital
status. The fact that a number of applicants who filled
acting-up posts in the period 1982-1988 did not succeed
in the competition, whilst some did, refutes the argument
that those in the first category had an unfair advantage
and no evidence whatever was submitted to support an
allegation that a sex bias pertained.
(c) The Court agrees with the Equality Officer that the 90%
allowance paid to those who 'acted-up' as compensation is
remuneration within the definition set down in the Act of
1974 and therefore is excluded from consideration under
the 1977 Act.
DETERMINATION:
7. The Court accordingly holds that the Southern Health Board did
not discriminate against the claimants and accordingly rejects the
appeal against Equality Officer's Recommendation No. EE15/1990.
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Signed on behalf of the Labour Court
Evelyn Owens
27th September, 1991. _______________
B.O'N/J.C. Deputy Chairman