Labour Court Database __________________________________________________________________________________ File Number: AEE9415 Case Number: DEE957 Section / Act: S21EE Parties: MID WESTERN HEALTH BOARD - and - PSYCHIATRIC NURSES ASSOCIATION;P N A |
Appeal by the Association against Equality Officer's Recommendation No. EE17/1994 concerning a claim by a worker that the Mid Western Health Board discriminated against him contrary to the provisions of the above Act by re-deploying him on the 15th December, 1993, 31st December, 1993, 2nd January, 1994 and 10th January, 1994.
Recommendation:
1977
Division: Mr Flood Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
AEE9415 DETERMINATION NO. DEE795
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21
PARTIES:
MID WESTERN HEALTH BOARD
(REPRESENTED BY THE LOCAL GOVERNMENT STAFF NEGOTIATIONS BOARD)
AND
PSYCHIATRIC NURSES ASSOCIATION
SUBJECT:
1. Appeal by the Association against Equality Officer's
Recommendation No. EE17/1994 concerning a claim by a worker
that the Mid Western Health Board discriminated against him
contrary to the provisions of the above Act by re-deploying
him on the 15th December, 1993, 31st December, 1993, 2nd
January, 1994 and 10th January, 1994.
BACKGROUND:
2. 1. The background to this dispute is set out in the
Equality Officer's Recommendation which is attached as
Appendix 1 to this Determination.
2. The Equality Officer's Recommendation which was issued
on the 8th November, 1994 found that the Mid Western
Health Board did not discriminate against the worker in
terms of Section 2 (a) of the Act and contrary to
Section 3 of the Act when he was re-deployed on the 15th
December, 1993, 31st December, 1993, 2nd January, 1994
and 10th January, 1994.
3. On the 9th December, 1994 the Association on behalf of
the worker appealed the Equality Officer's
Recommendation to the Labour Court on the following
grounds:-
(1) The Equality Officer does not in her report, at
Section 1 under the heading of Dispute, address all
the relevant acts which constitute the complaints
of discrimination, referred to the Labour Court for
investigation.
(2) The Equality Officer's report is inaccurate because
it contains statements attributed to the worker,
which are false, mis-leading and untrue and which
he never submitted orally or in written form.
(3) The Equality Officer's report does not give a
comprehensive summary of the workers case, certain
sections of which are ignored.
(4) The Equality Officer's report does not include
various contentious issues, and arguments, raised
by the worker in oral and written submissions, as
part of his case.
(5) The Equality Officer's report attributes to the
Board, evidence, the existence of which the worker
was not aware of, in oral or written form.
(6) The Board provided the Equality Officer with false
and mis-leading information, on foot of which she
based her recommendation.
(7) The Equality Officer accepted mis-leading
information from the Board on foot of which she
based her recommendation.
(8) The Equality officer was erroneous in her
recommendation.
The Court heard the appeal in Limerick on the 27th July,
1995. The written submissions to the Court are attached
as appendices.
DETERMINATION:
This is an appeal from a Recommendation of an Equality Officer
which found that the Mid Western Health Board did not discriminate
against the complainant in terms of the Employment Equality Act
1977.
In the appeal, the complainant (represented by the Psychiatric
Nurses Association (PNA) asks the Labour Court to deal with
certain questions which it regards as fundamental in relation to
the capacity of hospital managements to comply with the
requirements of the equality legislation.
The Court heard this appeal on 27th July 1995 and has taken into
consideration both the written and the oral submissions that have
been made.
The Court determines that the Recommendation of the Equality
Officer be upheld. The Court holds that there was no
discrimination against the complainant in terms of the Employment
Equality Act 1977.
The Court points out that to establish discrimination under the
Act, a complainant must show both less favourable treatment, and
that such less favourable treatment arises from an attribute of
the sex of such complainant. The complaint in this case was that
the complainant was re-deployed from one area of work to another,
and replaced by a member of the opposite sex. It would appear
from the PNA submission that it is not the re-deployment alone
that is at issue, but the re-deployment coupled with the
substitution by a member of the opposite sex; these two factors
allegedly constitute the discrimination. The PNA further alleges
that nurses are assigned to different tasks because of their
gender, and that the inevitable result is either that the Act has
been contravened, or that the Act cannot be applied in the context
of a psychiatric hospital.
The Court sees no logic in the argument that a male nurse suffers
discrimination because he is re-deployed to a particular area of
work and replaced by a female nurse. He has to show that he has
been treated less favourably. The treatment consists of the
re-deployment; it does not consist of the substitution. Unless
that re-deployment is less favourable than the treatment that
would be accorded to members of the opposite sex, and arises from
an attribute of his sex, it is not discrimination within the
meaning of the Act.
The Court also finds no merit in the argument that the Act has
been contravened if nurses are assigned to different tasks because
of their gender. The Act will only be contravened if the
assignments are less favourable treatment because of gender.
The Court is satisfied that the management of psychiatric
hospitals requires decisions to be made by management about the
assignment of staff to varying tasks of responsibility at
differing times. The Court is also satisfied that when
psychiatric nurses take up employment in a psychiatric hospital
they take up responsibility for a range of tasks involved in the
care of mentally disturbed persons. Management must decide where
to assign the particular staff at its disposition at any given
time, and take into consideration the mix of skills of the
particular staff. It must also take into consideration the safety
and welfare of both patients and staff, and it may very well be
that certain tasks at certain times are more appropriately handled
by a nurse of one sex or the other. But the decision to assign a
particular task to a nurse of a particular sex is not less
favourable treatment if the task is within the range of
responsibilities for which the nurse was employed. The Equality
legislation does not require that employees of both sexes be
employed in exactly the same manner; it requires that they not be
treated less favourably on account of being a male or a female.
In the case before the Court, there is no evidence that the
re-deployment of the complainant was less favourable treatment
than would be accorded to a female member of staff.
The Appeal is dismissed.
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Signed on behalf of the Labour Court
22nd September, 1995 Finbarr Flood
T.O'D./D.T. _______________
Deputy Chairman
A P P E N D I C E S
Appendix I Equality Officer's Recommendation
Appendix II Union's Submission
Appendix III Board's Submission