EMPLOYMENT EQUALITY ACT, 1977
EQUALITY OFFICER'S RECOMMENDATION NO. EE 02/1996
P A R T I E S
Dr. Juliet Bressan
(Represented by the I.M.O.)
AND
Western Health Board
(Represented by the L.G.S.N.B.)
1. DISPUTE
1.1 This dispute concerns a claim by Dr. Juliet Bressan that
the Western Health Board discriminated against her on
grounds of sex and marital status in terms of Section
2(a) and Section 2(b) of the Employment Equality Act,
1977 and in contravention of Section 3 of that Act when
they did not shortlist her for interview for a six
months training position in the Paediatric Department in
the University College Hospital Galway.
2. BACKGROUND
2.1 In October, 1991 Dr. Bressan applied for a full Senior
House Officer post in the Paediatric Department in the
University College Hospital Galway from January, 1992 to
July, 1992. She was prevailed upon to do so by the Head
of the Paediatrics Department at that time.
File No. EE 14/92
2.2 In a letter dated 15th October, 1991 the Western Health
Board informed Dr. Bressan that her application had not
been shortlisted for interview. Dr. Bressan pursued the
matter with the Western Health Board. She was not
satisfied with the response she received and she
contacted the Irish Medical Organisation (I.M.O.).
2.3 On 13th April, 1992 the Irish Medical Organisation
referred the complaint to the Labour Court and the
Labour Court referred the case to an Equality Officer
for investigation and recommendation. Hearing of the
case was postponed for some time at the request of the
claimant.
3. SUMMARY OF CLAIMANT'S CASE
3.1 The I.M.O. submits that Dr. Bressan was discriminated
against by the Western Health Board on the grounds of
her sex and martial status within the meaning of Section
2(a) and Section 2(b) and in contravention of Section 3
of the Employment Equality Act, 1977.
3.2 The I.M.O. states that the claimant, having completed
her Internship in July, 1990, spent one year as Senior
3
House Officer in Paediatrics in University College
Hospital Galway. During that period she passed the
Diploma in Child Health Examination and also completed
two research projects. The I.M.O. states that, in July,
1991, the claimant was advised that she would require
Membership of the Royal College of Physicians (M.R.C.P.)
in Paediatrics in order to continue a career in
Paediatrics. Consequently she took up a post as Senior
Medical House Officer in the same hospital to facilitate
the passing of the primary M.R.C.P. (a general exam
paper).
3.3 The I.M.O. claims that, in October, 1991, the claimant
was advised to apply for a post in Paediatrics from
January, 1992 for the duration of six months. At that
time the claimant indicated that she would be on
maternity leave from 23rd December, 1991 until 29th
March, 1992 and for that reason would prefer to apply
for a locum post from April to June, 1992. The I.M.O.
claims that the claimant was prevailed upon by the Head
of the Department of Paediatrics to apply for the
full-time position.
3.4 The claimant did subsequently apply for the position but
4
she was not shortlisted for interview. This was
confirmed to her by letter dated 15th October, 1991 from
the Western Health Board. The I.M.O. states that the
claimant later discovered that male candidates less
qualified than her were successful for the position for
which she applied.
3.5 The claimant wrote to the Western Health Board on 21st
October, 1991 stating that she could only assume that
her pregnancy had been the main influence in the
decision not to consider her for the post. This was
refuted by the Western Health Board in their letter of
19th November, 1991 in which it claims that the reason
for non-selection was
"... you had already spent two six month training
periods within the Paediatric Unit, the Selection
Committee considered that it would be in your own
best interests in pursuing a career in Paediatrics,
to gain further experience outside the Galway
unit."
3.6 The I.M.O. states that the claimant applied for
maternity leave during this time and that the Western
Health Board advised her, on the 14th November, 1991,
that they would grant her paid maternity leave from 23rd
5
December, 1991 to 31st December, 1991 inclusive i.e. the
end of the contract period. This issue was taken up by
the I.M.O. with the Western Health Board who adopted the
position that as the claimant had not secured
appointment in the Health Services from 1st January,
1992 there was no obligation on the Board to pay
maternity leave after 31st December, 1991. The I.M.O.
states that after a series of telephone conversations
between themselves and the Western Health Board, the
Board accepted that Clause 5(d) of the Non-Consultant
Hospital Doctor (N.C.H.D.) contract stipulated that
terms of appointment should be extended to enable
employing authorities to comply with the maternity leave
provisions as set out in the contract. The Health Board
confirmed that a period of 14 weeks maternity leave
would be paid from 23rd December, 1991.
3.7 The I.M.O. contends that, based on the circumstances set
out at paragraph 3.6 above, it is of the opinion that in
the process of recruitment for posts in the Paediatric
Unit in the University College Hospital Galway there was
discrimination against the claimant on the grounds of
sex and martial status. The I.M.O. is also of the view
that this discrimination was compounded by the stance
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initially taken by the Western Health Board in relation
to the granting of paid maternity leave.
3.8 The I.M.O. further states that in the six months from
1st January, 1992 the claimant worked as a locum House
Officer in the Department of Paediatrics in the
University College Hospital, Galway for approximately 12
weeks. She applied for a full Senior House Officer post
in the Paediatric Unit starting on 1st July, 1992 and
again she was unsuccessful. The I.M.O. claims that two
male candidates with inferior qualifications and
experience to the claimant were successful in applying
for the posts.
3.9 The I.M.O. does not accept that the reason given to the
claimant by the Western Health Board in their letter of
19th November, 1991 is adequate for non-selection. The
I.M.O. contends that in the process of recruitment there
was discrimination on the grounds of sex and marital
status.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 In their submission the Western Health Board indicates
7
that they are responding to the claim of an alleged
discriminatory act which took place on 15th October,
1991. The Health Board questions the admissibility of
the allegation of discrimination by the claimant in
relation to her application for the post of Senior House
Officer in Paediatrics, University College Hospital
Galway commencing 1st July, 1992. The Health Board also
considers that the situation which arose over the
granting of paid maternity leave to the claimant is not
relevant to the substantive issue of this case i.e.
whether an alleged discriminatory act took place on 15th
October, 1991.
4.2 The Health Board states that the claimant applied for a
post of House Officer in Paediatrics in University
College Hospital, Galway, commencing 1st January, 1992.
The application was considered by a board comprising
three Consultant Paediatricians who decided not to
shortlist her for the post. The claimant was informed
of this decision on 15th October, 1991.
4.3 The Health Board states that the claimant wrote to them
on 21st October, 1991 (following the receipt of the
decision not to shortlist her for interview) and in her
8
letter she stated that she had
"adequate grounds to presume that my pregnancy has
been the main influence in the decision not to
consider me for the post."
4.4 The Health Board replied on 19th November, 1991
outlining its position, while at the same time, refuting
in the strongest possible terms that any discrimination
had taken place on the grounds of pregnancy.
4.5 The Health Board states that the claimant indicated that
male candidates less qualified than her were successful
for the position for which she applied. The Health
Board emphasises that Non-Consultant Hospital Doctor
(N.C.H.D.) posts are rotational training posts. The
criteria for selection of candidates for these posts are
qualifications, experience and general suitability. The
selection board, in making its decision, had regard to
the position of the Royal College of Physicians in
Ireland (R.C.P.I.). The General Professional Training
Committee of the R.C.P.I. only recognises approved
service as a House Officer in Paediatrics at University
College Hospital Galway for a maximum period of twelve
months towards obtaining accreditation for general
9
professional training.
4.6 The Health Board points out that the claimant had
obtained twelve months experience as a House Officer in
Paediatrics at University College Hospital Galway on
30th June, 1991 and this factor was taken into account
by the selection board.
4.7 The Health Board states that, on checking its records
for the past ten years, no individual who has
accumulated the maximum period of twelve months approved
service, as a House Officer in the Galway unit, has been
re-appointed.
4.8 The Health Board claims that the R.C.P.I. recognise
training posts for a specific period of time in order to
facilitate and encourage the movement of N.C.H.D.s
through approved posts with a view to better overall
training and experience for all N.C.H.D.s.
4.9 In conclusion the Health Board states that it is an
equal opportunities employer and fully complies with all
legislation on this matter. The Board, therefore,
rejects the claimant's allegation that she was
10
discriminated against on the grounds of sex and marital
status contrary to Section 2(a) and Section 2(b) of the
Employment Equality Act, 1977.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The case before me is that the Western Health Board
discriminated against Dr. Juliet Bressan on 15th
October, 1991 in terms of Section 2(a) and Section 2(b)
of the Employment Equality Act, 1977 when they failed to
shortlist her for interview for a position of Senior
House Officer in the Department of Paediatrics in
University College Hospital Galway. In making my
recommendation I have taken into account all the
submissions, both written and oral, made to me by the
parties.
5.2 The facts are that the claimant applied for a six months
posting as a Senior House Officer in Paediatrics in
University College Hospital Galway for the period from
January, 1992 to June, 1992. The claimant's application
was not shortlisted by the Western Health Board. The
claimant wrote to the Western Health Board alleging that
the reason she had not been shortlisted was because of
11
her pregnancy. The Health Board, in response, stated
that the reason that her application had not been
shortlisted was because she had already held the
position for two six months training periods and in
pursuing her career in Paediatrics she would be advised
to gain further experience outside the Galway Unit.
5.3 The I.M.O. referred to a dispute which arose between the
claimant and the Health Board over paid maternity leave
for 14 weeks and also to the Board's failure to
shortlist the claimant when she again applied for the
position of Senior House Officer in Paediatrics in the
Galway Unit commencing in July, 1992. The Health Board,
in their submission, questioned the admissibility of
these allegations. I am satisfied that these
allegations are outside the scope of this investigation
as the original claim only related to an alleged act of
discrimination which happened on 15th October, 1991.
5.4 The I.M.O. states that, when advised by the Head of the
Department of Paediatrics to apply for a six months post
in Paediatrics, the claimant had indicated a preference
for a locum House Officer post in Paediatrics from April
to June, 1992 as she would be on maternity leave from
12
23rd December, 1991 to 29th March, 1992. However,
despite her pregnancy, she was prevailed upon by the
Head of the Department of Paediatrics to apply for the
position.
5.5 At the hearing Dr. Loftus (one of the three consultants
on the selection board) confirmed that the post of Head
of the Department of Paediatrics is a rotational one and
that he was in the position at that time. Dr. Loftus
also confirmed that he had advised the claimant to apply
for one of the posts of Senior House Officer in the
Paediatrics Department.
5.6 The procedure for shortlisting applicants was outlined
by Dr. Loftus. On receipt of all the application forms,
the Health Board passed them to the Head of the
Department of Paediatrics (at this time, Dr. Loftus).
He examined all the application forms and put them in
three bundles as follows:
- Applicants who would be called for interview;
- Applicants who might be called for interview;
- Applicants who would not be called for
interview.
He then passed all the application forms in the above
categories to one of the other two consultants on the
13
selection board. This consultant examined all the
application forms and then passed them to the third
consultant on the selection board. If one or both of
the other consultants did not agree with the
categorisation of a particular applicant, the
consultants discussed the application and agreed on the
appropriate categorisation. The three consultants sat
on the interview board with a person from the Health
Board acting as chairman.
5.7 Dr. Loftus stated, at the hearing, that he had placed
the claimant's application in the categorisation for
selection for interview. However, the other two
consultants informed him of the fact that the General
Professional Training Committee of the Royal College of
Physicians of Ireland (R.C.P.I.) only recognise approved
service as a House Officer in Paediatrics at University
College Hospital Galway for a maximum period of twelve
months towards obtaining accreditation for general
professional training. For this reason the claimant,
who had spent twelve months in Paediatrics in the Galway
Unit, had not been selected for interview. Dr. Loftus
stated, at the hearing, that he had not been aware of
this policy by the R.C.P.I. given that he had only
14
worked in the University College Hospital Galway since
mid 1988 and prior to that he had worked in London and
prior to that again he had served in one or two of the
Dublin Hospitals. Furthermore, he had only taken up the
position of Head of the Department of Paediatrics that
year.
5.8 The Health Board further stated, at the hearing, that
these six months posts are available to all doctors and
that it is in everyone's interest that these posts be
distributed around the various doctors with as many
doctors as possible getting the opportunity of availing
of these posts. The Health Board did say, however, that
where there are only a small number of applicants it is
necessary to permit a doctor to serve more than twelve
months in a post, despite the accepted policy. The
Department of Paediatrics has traditionally experienced
a high number of applicants and this has therefore not
been an issue.
5.9 Section 2(a) of the Act states that discrimination shall
be taken to occur where
"by reason of his sex a person is treated less
15
favourably than a person of the other sex".
The I.M.O. states that the claimant was discriminated
against when she was not placed on the shortlist for
interview for a six months training position in the
Department of Paediatrics in University College Hospital
Galway. I note that applicants were not asked to give
their sex on the application form and I am satisfied
that, as many of the applicants were originally from
overseas, their sex was not obvious from their names.
There were a total of 77 applicants, of which 20 (14
females and 6 males) were shortlisted for interview. As
both male and female applicants were shortlisted for
interview I am satisfied that no evidence has been
presented to me to support the claim of direct
discrimination against the claimant on the basis of her
sex.
5.10 Section 2(b) of the Act provides that discrimination
shall be taken to occur where
"because of his marital status a person is treated
less favourably than another person of the same
sex".
According to the I.M.O. the claimant was discriminated
against because she was not placed on a shortlist for
16
interview for a six months training position. The
I.M.O. argues that the reason that the claimant was not
placed on the shortlist was because she was pregnant at
the time. No evidence was presented to me to support
this contention. I examined all the application forms
from all the applicants. Applicants were not asked to
disclose their marital status. Many of the applicants
were attached to other hospitals and hence would not
have been known to the consultants who drew up the
shortlist. I am, therefore, satisfied that there is
insufficient evidence to support the argument that those
placed on the shortlist were selected because of their
marital status.
5.11 At the second hearing of this case the claimant put
forward arguments in relation to indirect discrimination
under Section 2(c) of the Act. I note that the original
claim was made under Section 2(a) and Section 2(b) of
the Act. The Health Board pointed out that the Union
had failed to submit a claim under Section 2(c) of the
Act when the original claim form was submitted.
However, in the May, 1990 High Court case of Long and
Powers Supermarket & Others, Mr. Justice Johnson held
that there is an obligation on the Equality Officer to
17
examine all aspects of the claim whether or not they
have been referred in the original claim form.
5.12 Section 2(c) of the Act states that discrimination shall
be taken to occur where:
"because of his sex or marital status a person is
obliged to comply with a requirement, relating to
employment ...... which is not an essential
requirement for such employment ...... and in
respect of which the proportions of persons of the
other sex or ...... of a different marital status
but of the same sex able to comply is substantially
higher".
The Health Board had stated in its submission that the
reason that the claimant had not been placed on the
shortlist was because she had completed two six month
training posts in the Paediatrics Unit in the University
College Hospital Galway. The Health Board also said
that they had no record of any other doctor obtaining
more than two six months training positions. This was
in accordance with the rulings set by the Royal College
of Physicians of Ireland and it applies to all the
various Departments in the hospital.
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5.13 The evidence I would require from the Union in order to
substantiate a claim of discrimination in terms of
Section 2(c) of the Act would be that a requirement was
imposed on the claimant with which a substantially
higher proportion of male Senior House Doctors than
female Senior House Doctors or married female Senior
House Doctors than single female Senior House Doctors
could comply, that the inability to meet the requirement
was linked with either sex or marital status and that
the requirement was inessential for employment.
5.14 The arguments put by the Union were as follows:
- a maximum of one year's experience in the
Paediatrics Department of the University College
Hospital Galway should not be held to be an
essential requirement for the post;
- the ruling imposed by the R.C.P.I. and the
University College Hospital Galway had a
differential impact on married people, especially
married females.
5.15 The 1987 Supreme Court case of the North Western Health
Board and Catherine Martyn referred to the type of
evidence that is required to establish indirect
19
discrimination within the terms of Section 2(c) of the
1977 Act. On this issue Mr. Justice Hederman states
that "the burden of proving the facts necessary to
establish discrimination lies upon the person alleging
it". As regards the first argument put by the Union and
outlined in paragraph 5.14 above I note that there is no
statistical evidence available either from the Union or
the Health Board to back up their assertion. As the
requirement, that a Senior House Doctor can only have a
maximum of one year's experience in the Paediatrics
Department, is applied to all applicants it cannot be
held to be discriminatory in the absence of statistics.
While more females were placed on the shortlist than
males, it is not known how many males and how many
females actually applied for the posts. This is because
applicants did not have to specify their sex on the
application form and, as many of the applicants were
originally from overseas, their sex was not obvious from
their names.
5.16 The Union has also held that the ruling by the R.C.P.I.
and imposed by the Galway unit has a differential impact
on married people, especially married women. Again this
is a further claim by the Union which has not been
20
substantiated by statistics. The applicants for the
position did not have to specify their marital status on
the application forms so it is not known how many
applicants were single and how many were married.
5.17 The Union also made the claim that the claimant was
discriminated against under Section 6 of the Act which
is concerned with discrimination in relation to
vocational training prohibited. No evidence, however,
was produced to substantiate this claim.
6. RECOMMENDATION
21
6.1 I find that the Western Health Board did not
discriminate against Dr. Juliet Bressan in terms of
Section 2 of the Act when she was not placed on a
shortlist for a six month training position in the
Department of Paediatrics, University College Hospital
Galway.
_____________________
Gerardine Coyle
Equality Officer
1st February, 1996
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