1. DISPUTE
1.1 This dispute concerns a claim by Mr. Martin Smyth that,
on 23rd April, 1993 the Eastern Health Board
discriminated against him in terms of Section 2(a) and
Section 2(c) of the Employment Equality Act, 1977 and in
contravention of Section 3 of that Act by refusing him
time off under the 39 Hour Agreement despite the fact
that he had given adequate notice requesting the time
off.
2. BACKGROUND
2.1 Under the 39 Hour Agreement a nurse can request time off
as a result of accumulated hours. Mr. Smyth requested
time off on 20th April, 1993 (three days in advance of
when he wished to take the time off) and it was only on
the morning of the 23rd April, 1993 that he became aware
that his leave had not been granted.
2.2 I note that there has been some confusion as to the date
on which the alleged discrimination took place. The
Union and the Health Board agree that it took place on
23rd April, 1993 and not on the 25th April, 1993 as had
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been stated in the original claim form and in the second
submission from the Union. Copy of letter to the Labour
Court attached as Appendix A refers.
2.3 The original claim was made on the basis of direct
discrimination under Section 2(a) of the Act. A claim
of indirect discrimination under Section 2(c) of the Act
was subsequently made.
2.4 The Psychiatric Nurses Association (P.N.A.), the Union
representing the claimant, referred the case to the
Labour Court in December, 1993 and the Court referred
the case to an Equality Officer for investigation and
recommendation.
3. SUMMARY OF CLAIMANT'S CASE
3.1 The Union submits that on 20th April, 1993 the claimant
requested, in writing, time off duty on Friday, 23rd
April, 1993 in lieu of accumulated time due under the 39
hour agreement. The Union states that hours accumulated
by the introduction of the 39 hour week are granted on
request by the Assistant Chief Nursing Officer depending
on staffing levels at the particular time of the
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request. The Union also states that a request may be
denied because of staff shortages or if other staff had
requested hours at the same time.
3.2 The Union claims that Ms. Mary Casey, the Assistant
Chief Nursing Officer (A.C.N.O.) refused the claimant
time off on the basis of his sex. Having investigated
the matter the Union found that the claimant was
required to work in a male Unit (Unit D). This was due
to the volatility of patients in the ward and the
potential for aggressive outbursts among some of them.
Hence the A.C.N.O. required the maximum male nurse
presence given the circumstances.
3.3 The Union states that the A.C.N.O. did suggest that the
claimant could get another nurse to work for him if he
particularly needed the time off. However, she would
only allow another male nurse work for him. The Union
mentions that the unit is served by both male and female
staff and they all carry out the same duties.
3.4 The Union contends that the claimant was discriminated
against in terms of Section 2(a) of the Employment
Equality Act, 1977 because he was denied time off duty
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because of his sex.
3.5 In advance of the hearing of this case the Union
submitted a further submission. In this submission the
Union points out that the claimant was not informed by
management that the afternoon he planned to take off had
been cancelled. He became aware of it through casual
conversation that morning. The Union contends that the
claimant should have been given as much notice as
possible that his request for time off was being denied
by management given that he had submitted his request
three days in advance.
3.6 The Union claims direct discrimination under Section
2(a) of the Act on the basis that had the claimant been
a female his leave would not have been cancelled. The
Union further states that it is not aware of any female
having her leave cancelled in similar circumstances.
3.7 The Union also claims indirect discrimination under
Section 2(c) of the Act on the basis that the claimant
was obliged to remain on duty despite the fact that the
proportion of female nurses, which could have provided
the nursing services required, was substantially higher.
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The Union contends that over the past four years the
percentage of male nurses has dropped from 33% to the
present 24% approximately of all nursing staff. On this
basis a substantially greater proportion of persons of
the female sex could have performed this duty.
3.8 The Union does not consider that his maleness was an
essential requirement. Based on the percentages given
in paragraph 3.7 above, the Union is satisfied that the
policy of the Eastern Health Board is to replace male
nurses with female nurses. According to the Union this
must mean, in theory at least, that the Eastern Health
Board sees no difference in the nursing services
provided by either male or female nurses. On this basis
the Union, therefore, contends that the fact, of the
claimant being required to remain on duty, must surely
amount to indirect discrimination.
3.9 The Union refers to the situation in the unit on the day
in question and states that a patient was being
'specialed' by two male nurses on the instruction of the
Consultant Psychiatrist, (which is a matter of written
record). The Union claims that, in practice, there are
nursing duties (e.g. specialing, escort duty, etc) which
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are held, by nurse or medical management, to be more
appropriately carried out by male nurses. Health and
Safety are often being quoted as the reason especially
where violent/ aggressive/disturbed patients (male or
female) have to be 'specialed'. The Union states that
the determining factor would seem to be physical
strength/stamina and it contends that these are not
genuine occupational qualifications in accordance with
the Code of Practice published by the Employment
Equality Agency.
3.10 The Union claims that 'specialing' has increased over
the past ten years resulting in the male nursing staff
having to undertake these demanding and sometimes
dangerous duties much more frequently. Furthermore,
this type of duty has to be done by an ever decreasing
circle of male nurses. The Union contends that the
Eastern Health Board is operating, in practical terms,
as if Section 17 2(c) of the Employment Equality Act,
1977 applied to them on the one hand, while in areas
like recruitment they insist that they cannot have
regard to gender balance because of the Equality
Legislation. The Union advocates that this is the best
of both worlds.
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3.11 The Union refers to Section 3(2) and 3(4) of the Act and
suggests that the claimant or any other male nurse in
St. Loman's Hospital should enjoy the same terms of
employment as their female colleagues. The Union argues
that the circumstances in which both male and female
nurses are employed are not materially different, yet
different rules apply to male staff. In this case the
claimant suffered severe disadvantage, stress,
uncertainty and disruption of family life as a result of
the discrimination.
3.12 The Union states that the claimant's wife was down the
country on a training course and the claimant had
requested the afternoon off as the baby-sitter was only
available for the morning. Because of the short notice
he received about his leave being cancelled the claimant
had to return home at lunch hour and organise, with
difficulty, the services of another baby-sitter who was
unknown to both himself and his children.
3.13 The Union states that the claimant has been
discriminated against under Section 2(a) and Section
2(c) of the Employment Equality Act, 1977 when he was
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not allowed time off duty. Had there been equality
between the sexes this would not have happened as there
were adequate females available on the day to perform
the duty.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The Eastern Health Board refutes the claim that it
discriminated against Mr. Smyth by not granting him time
off duty on 23rd April, 1993.
4.2 The Health Board states that nurses are deployed
throughout the hospital without regard to the gender of
the nurse and jobs are not classified on the basis of
gender. However, in the case of some specific
assignments, for example the 'specialing' of a
particular patient, the gender of the nurse may be a
factor in deciding the most suitable nurse for that
specific assignment. The Health Board acknowledges that
this situation pertained in the claimant's case i.e.
although the unit is staffed by both male and female
nurses, it was decided that a male nurse would be more
suited to the task of 'specialing' which was required in
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the unit.
4.3 The Health Board contends that the refusal by the
A.C.N.O. to grant the claimant time off duty as
requested does not constitute less favourable treatment
on the grounds of sex under the 1977 Act. The Health
Board claims that all nurses, employed by it, are
rostered to work a 39 hour week and can be deployed or
assigned to any unit in the hospital based on the
exigencies of the service and the patient needs.
4.4 The Health Board states that it is a local agreement in
the hospital which provides that hours accumulated by
the introduction of the 39 hour week are granted on
request by the A.C.N.O. depending on staff levels at the
particular time of the request. The Health Board,
further, states that it is not unusual for a request to
be denied due to staff shortages or if other staff have
requested hours off at the same time. In this case the
claimant was refused time off due to service needs and a
female would have had a similar request refused if the
needs of the service so required.
4.5 The Health Board concludes that, although the claimant's
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gender was a factor in deciding his suitability for a
particular task on the day in question, the refusal to
grant him time off did not constitute discrimination on
the grounds of sex. The grant or otherwise of time off
under the 39 hour agreement is conditional on service
needs and it could equally happen to female staff. In
the event of a refusal all nurses receive their
accumulated time off at another agreed time.
4.6 The Health Board rejects the claim that the actions of
the hospital in this case were in breach of Section 2(a)
and Section 2(c) of the 1977 Act.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 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 P.N.A. alleges that refusal to allow the claimant
(Mr. Smyth) time off on Friday, 23rd April, 1993
constituted discrimination against him on the grounds of
sex in terms of Section 2 and Section 3 of the Act.
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5.3 The claimant gave three days notice for an afternoon
off, under the 39-Hour Agreement, and on the morning of
that day he was told that due to the work demands he
could have the afternoon off only if he could find a
male replacement. The P.N.A. argues that if he was a
female nurse he would not have been told that he would
have to be replaced by a female nurse. It also referred
to Section 17 of the Act and held that physical strength
and stamina cannot be held to be an occupational
qualification for the post.
5.4 The Health Board denies that Mr. Smyth was discriminated
against under the Act. At the hearing the Health Board
explained that, under the 39-Hour Agreement, staff are
not guaranteed time off as they want it. The agreement
is flexible and time off is based on the demands in the
system at the time. Time off can only be determined on
a day-to-day basis and no matter how much notice is
given hospital management is not in a position to agree
to time off except on the particular day in question.
To guarantee time off nurses can change their roster
with another nurse or else take annual leave. The
Health Board also explained the term 'specialing'. This
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is a situation where one or more nurses are required to
carry out a 24 hour surveillance on one patient. It is
generally a one-to-one activity, but in exceptional
circumstances there are two nurses to one patient. This
situation is prescribed in writing by a consultant
psychiatrist.
5.5 The Health Board elaborated on the situation which
pertained in the Hospital on 23rd April, 1993. On that
day, in Unit D, there were two patients who required
'specialing' as prescribed by a consultant psychiatrist.
One of the patients was 'specialed' by a female and a
male nurse on alternative shifts. The second patient
was 'specialed' by two male nurses. There were four
male nurses taking turns on this 'specialing' duty.
This had been prescribed by a consultant psychiatrist
because the patient was particularly difficult. The
Health Board pointed out that all nurses are asked to
carry out 'specialing' duties. However, in exceptional
circumstances, a consultant psychiatrist may stipulate
that a nurse of a particular sex should carry out the
duty. According to their contract of employment a
psychiatric nurse (male or female) is obliged to carry
out the duties prescribed therein and this includes the
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task of 'specialing'.
5.6 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
favourably than a person of the other sex".
The P.N.A. argues, under this Section of the Act, that
had the claimant been a female he would not have had his
leave cancelled. The Health Board produced evidence (at
Appendix B) of instances when female nurses have been
refused leave under the 39-Hour Agreement. I note that
the Health Board have not recorded the reason for the
leave being refused. I am satisfied that where a
consultant psychiatrist had specifically requested a
female nurse to undertake the 'specialing' duty then a
female nurse, seeking time off, would have been replaced
by a female nurse. Hence I am satisfied that female
nurses are not treated differently to male nurses.
5.7 Section 2(c) of the Act provides that discrimination
shall be taken to occur where
"because of his sex ...... 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
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proportions of persons of the other sex ...... able
to comply is substantially higher".
The Health Board provided the Equality Officer with
statistics on the number of nurses attached to St.
Loman's Hospital for the period from 1st January, 1990
to 31st December, 1993 (see Appendix C). These
statistics show the percentage of male hospital nurses
for the years 1990 to 1993 as follow:
1993 109 35.8%
1992 105 35.2%
1991 109 33.9%
1990 115 36.5%
Percentage of
Males
Total Number of
Hospital Nurses
Year
(31st Dec)
The P.N.A. contends that these statistics are
out-of-date and that end of October, 1995 figures would
show that female nurses out-number male nurses three to
one. As the alleged act of discrimination took place in
1993, I am satisfied that the statistics for 1995 are
not relevant.
5.8 The requirement, identified by the P.N.A., was that the
claimant was obliged to remain on duty despite the fact
that the proportion of female nurses, which could have
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provided the nursing services required, was
substantially higher. I am satisfied that none of the
female psychiatric nurses could have provided the
nursing services required in this instance. A
consultant psychiatrist specifically requested two male
nurses to undertake this 'specialing' duty and both the
P.N.A. and the Health Board accept that this request was
made.
6. RECOMMENDATION
6.1 I find that the Eastern Health Board did not
discriminate against Mr. Smyth in terms of Section 2(a)
or 2(c) of the Employment Equality Act, 1977 by refusing
him time off under the 39 Hour Agreement despite the
fact that he had given adequate notice requesting the
time off.
__________________
Gerardine Coyle
Equality Officer
15
5th March, 1996
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APPENDIX A
Copy of Letter
from the P.N.A.
to the Labour Court
APPENDIX B
Examples of time refused
to female nurses
due time from the
39-Hour Agreement
APPENDIX C
Health Board Statistics
on Nursing Staff Numbers
for the period from
1/1/90 to 31/12/93