EMPLOYMENT EQUALITY ACT 1977
EQUALITY OFFICER'S RECOMMENDATION NO. EE 20/1996
P A R T I E S
St Loman's Hospital E.H.B.
{Represented by the L.G.S.N.B.}
A N D
Mr Jim Brosnan
{Represented by the P.N.A.}
1 Dispute
1.1 This dispute concerns a claim by Mr Jim Brosnan, a psychiatric nurse employed in St Loman's hospital, that
he was discriminated against by the hospital when he was not appointed to a relief position, contrary to the
terms of the Employment Equality Act, 1977.
2 Background
2.1 In the early 1990s a relief panel for Community Psychiatric Nurses (C.P.Ns) was established from qualified sychiatric nurses at St Loman's Hospital.The members of this relief panel are used on a rotational basis to relieve C.P.Ns during periods of absence. The claimant was selected for this panel. The union on behalf of the claimant alleges that in June 1995 although he was the next person on the panel he was not appointed to act as a relief and a female nurse was appointed instead.
File No. EE 03/96
2.2 The claimant alleges that when he raised the matter with the hospital he was told that because of staffing levels it was not prepared to release any male members of staff to do this relief work. He claims that the experience gained from this relief work is beneficialwhen seeking promotion.
2.3 The union on 20th December 1995 referred this claim under the Employment Equality Act, 1977 to the Labour
Court. The Labour Court referred the case to an Equality Officer.
3 Summary of the Union's Case
3.1 The union says that the claimant is a qualified psychiatric nurse. It says that in the early 1990s that applications were sought from qualified psychiatric nurses at St Loman's Hospital for inclusion on a Relief Panel for Community Psychiatric Nurses (C.P.Ns). The union says that the panel was open to all staff nurses and there was no mention of a preference for a particular sex in the advertisement. The union says that the claimant was selected by interview and placed on the panel.
3.2 The union says that the nurses on the panel are used to relieve C.P.Ns on leave and the members of the panel are rotated through the vacancies. The union claims that the experience gained when carrying out C.P.N. work is invaluable for a nurse particularly when seeking to advance one's career and consequently places on the panel are keenly contested. It also says that interviewers take this experience into account when scoring applicants for promotion.
3.3 The union says that the claimant was the next on the panel to be placed when a member of the panel who had just completed a period of six weeks was reappointed to fill another long term assignment. The claimant queried this of the Chief Nursing Officer (C.N.O.) and asked whether or not staff on the panel were still being rotated. The claimant alleges that the C.N.O. told him that while the panel was still continuing to be used on a rotational basis, in this instance he had
to deviate from normal practice as the next available person on the panel was male (the claimant) and he was not prepared to use any male member of the panel due to the (then) current hospital staffing levels. The claimant says that he pointed out to the C.N.O. that to deny him this valid and advantageous experience on the grounds of gender was in his opinion discriminatory and he asked for the C.N.O.'s decision in writing (ref
appendix 1). The union claims that this letter clearly bears out that the claimant was refused the relief
position on the grounds of sex.
3.4 The union contends that this is clearly a case of discrimination based on his sex and contrary to section 2(a) of the 1977 Act "where by reason of his sex a person is treated less favourably than a person of the other sex". The union says that had the claimant been a female the assignment would not been refused and says that it is not aware of any female member of this panel being refused an assignment because of her sex.
3.5 The union also quotes section 2(c) "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 proportion of persons of the other sex able to comply is substantially higher". The union argues that the claimant was refused the assignment due to a shortage of male staff at the hospital to carry out everyday basic nursing care particularly in relation to acute and geriatric care and not because any specific gender was needed for the more prestigious assignment to the C.P.N. relief.
3.6 The union argues that there was no mention of genderpreference indicated in the original advertisement also that the nurses being relieved were of mixed gender and it was never an aspect of replacement that the relief nurse be of specific gender for any particular assignment at any time in the past. The union argues that the claimant was refused the assignment and obliged to remain on duty at basic staff nurse level despite fact that the proportion of female nurses, who
could have provided the nursing services required, at basic staff nurse level, was substantially higher. It says that the present male nurse population at St Loman's is no more than 30% of the staff, even when every male nurse is available for duty, therefore a substantially greater proportion of persons of the other sex (70% of female nurses) could have done this duty. The union argues that this is surely a case of indirect discrimination.
3.7 The union says that from the percentages quoted in the preceding paragraph it is apparent that the hospital
has no regard for gender balance and therefore sees no difference in the nursing services that either male or
female nurses provide. It argues that in practice that there are duties deemed by either nurse or medical
management that can be more appropriately carried outby a male nurse. It says that Health & Safety are often
quoted as the reason especially if the nursing concerns 4 a violent patient particularly when there is a need to
restrain the patient. The union says that it appears that male nurses are required to carry out escort duty
and to work in the acute unit where frequently the patients have to be restrained and argues that it seems
that the determining factor is physical strength and stamina, qualifications which it claims according to
the Code of Practice published by the Employment Equality Agency are not genuine occupational qualifications.
3.8 The union claims the requirement for this type of nursing care has increased over the last ten years
which has resulted in male nurses being required to undertake these demanding and sometimes dangerous
duties much more frequently. The union says that there is an ever decreasing number of male nurses whose
average age is increasing and this increases the frequency of the need for individual male nurses to carry out this work.
3.9 The union claims that the hospital operates in practical terms as if exclusions outlined at Section 17 2(c) applied to them on the one hand, while in areaslike recruitment they insist that they cannot have regard for gender balance because of the Equality legislation.
3.10 The union also refers to Section 3 of the 1977 Act as follows; "(2) An employer shall not, in relation to his employees or to employment by him, have rules or instructions which would discriminate against an employee or class of employee, and shall not otherwise apply or operate a practice which results or would be likely to result in an act which is in contravention of any provision of this Act when taken in conjunction with section 2 (c)"
"(4) Without prejudice to the generality of sub-section (1) a person shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if he does not offer or afford to a person or class of persons the same terms of employment (other than remuneration or any term relating to an occupational pension scheme), the same working conditions and the same treatment in relation to overtime, shift work, short time,
transfers, lay offs, redundancies, dismissals (other than dismissals referred to under Section 25), and disciplinary measures as he offers or affords to another person or class of persons where the circumstances in which both persons or classes are, or would be, employed are not materially different."
3.11 The union argues the neither the claimant nor any other male nurse in the hospital enjoys the same terms of
employment as their female colleagues. It says that the circumstances in which both male and female nurses are
employed are not materially different but males do not enjoy the same working conditions and are treated differently in relation to different areas of the hospital. It says that in this instance it is access to experience working as a C.P.N. The union says that in 1995 it was involved in a case concerning the treatment of a male nurse in relation to leave arising
from the 39 hour week.
3.12 The union argues that it appears from the letter of the C.N.O. that the hospital views male and female nurses
as two different entities and that opportunities for experience for male nurses are dependent on the number
of male nurses available for duty and not the general overall staffing of the hospital and it says that there
are different rules applying to female nurses.
3.13 The union argues that the claimant has suffered severe disadvantage, stress and uncertainty in being denied
the experience of long term C.P.N. duties, which is clearly advantageous for promotional opportunities
within the profession, on the sole basis that he is amale. Consequently the union seeks a finding of discrimination against the claimant.
4 Summary of the Hospital's Case
4.1 The hospital says that it operates a relief panel for Community Psychiatric Nurses (C.P.N.s) and the claimant
was included on it after a selection process. The hospital says that the panel is used to relieve C.P.N.s during periods on absence and while rotation may be a feature of the operation of the panel, service requirements at any time have to be taken into consideration.
4.2 The hospital says that the claimant was not assigned to a temporary C.P.N. vacancy which arose in June 1995
because of operational requirements which existed in the hospital at that time. It argues that earlier in the year the PNA had made representations to the hospital, in the context of staff security, to provide a gender balance in staff deployment and in particular sought a minimum of four male staff on duty during the day shift in each male admission unit and a minimum of two male staff on floor duty during the night shift. The hospital says that while it did not accept the specific representation made with regard to staff numbers, it did acknowledge the desirability of a gender balance.
4.3 The hospital says that the claimant was not deployed to the C.P.N. assignment in June 1995 because of the
acknowledged requirement to maintain a gender balance in the hospital. It says that at the time there were a
total of eight male nurses on sick leave, four long term and four short term. It says that the claimant was
told of the situation and advised that if the availability of male nurses improved the situation
would be reviewed and the C.N.O. would endeavour to assign him to C.P.N. work. It says that he has been
assigned to this relief work twice since then.
4.4 The hospital says that while the claimant's gender was a consideration in his non-assignment in June 1995, it
contends that its action does not constitute discrimination contrary to Section 2(a) "where by reason of
his sex a person is treated less favourably than a person of theother sex...."
4.5 The hospital says that it is an acute psychiatric hospital and its operational requirements and the exigencies of the service determine the assignment of staff to varying tasks at differing times. It says that the claimant's request to be assigned to the C.P.N. work could not be facilitated because of the situation that existed at the time he made this
request. The hospital contends that against thebackground of a request for a gender balance in certain parts of the hospital, by the union, this action did not constitute less favourable treatment on gender grounds.
4.6 The hospital also refers to the claimant's claim that this less favourable treatment has deprived him of C.P.N. work experience which is advantageous in advancing his career. The hospital says that while not diminishing the value of community work experience it argues that the criteria used in determining suitability for progression to supervisory status is very wide-ranging, the most important of which includes:
- Leadership skills
- Ability to motivate staff
- Ability to make decisions
- Ability to relate to other disciplines
- Innate disposition
- Good clinical experience and knowledge
- Good communication skills
- Awareness of the training needs of student nurses
- Ability to appraise and assess student nurses
- Ability to take overall responsibility for running a department or ward in the absence of the nursing officer.
4.7 The hospital argues that the absence or the amount of community based experience would not militate against a
nurse's career prospects. It says that suitability forpromotional posts is assessed under all of the headings set out above.
4.8 The hospital therefore argues that the non-assignment of the claimant to the relief post of C.P.N. in June
1995 did not constitute discrimination under Section 2(a) or Section 2(c) of the Employment Equality Act, 1977.
5 Conclusions of the Equality Officer
5.1 I have considered very carefully the written submissions of the parties and also their further statements made during a joint hearing between the parties. The claimant is a Psychiatric Nurse and a member of a relief panel that covers for Community. Psychiatric Nurses (C.P.N.s) on extended leave and although he was next in line when a vacancy arose he
was not appointed to fill it. This panel operates on a rotational basis. The union on behalf of the claimant is alleging that he was treated less favourably by reason of his sex when a female nurse was assigned to work as a C.P.N. in June 1995.
5.2 The union argues that he was discriminated against on the grounds of his sex when he was refused that particular assignment due to a shortage of male staff at the hospital. The hospital argues that due to manning levels it was unable to release him to this work. The union also argues that the working conditions of the male and female staff are different.
5.3 I note that this was the first time that the claimant was available, in the lifetime of this panel, for assignment to work as a C.P.N. as he had been acting as a deputy nursing officer (a post at a higher level than his current grading or as a C.P.N. as presently constituted). He has been assigned several times since then to work as a C.P.N.
5.4 I have considered all the points made to me by the parties. I note that while no female nurse has been refused an assignment from this panel, both male and female nurses are and have been transferred within the hospital in line with the requirements of the service. I further note that the union made representations to the management in early 1995 and requested that it (the hospital) maintain a minimum number of male staff in certain male wards in the hospital. The hospital has acknowledged the desirability of a gender balance while not agreeing to that specific representation made by
the union.
5.5 I note that currently there is no extra pay accruing to the claimant when he is assigned to C.P.N. work, and in
fact his earnings could be somewhat less, as there is no weekend or shift work that could attract enhanced
payments. The only additional payments that may be made are in respect of expenses and travel relating to the
work. I also note that the union says that payment for this work is a matter of ongoing negotiation between
the social partners and that an allowance of approximately £1300 per year could accrue to someone
acting as C.P.N. if the old rates were reinstated for this relief work. I note that if the union's claim is
conceded then it is possible that retrospective payments may be made to staff nurses carrying out this
work. However, at present, there are no additional payments made to nurses carrying out these relief
duties.
5.6 I note that the hospital argues that this is an assignment rather than an acting post as there is no
increase in pay. Because of the health and safety considerations, due to a perceived need to retain a
gender balance, as eight male nurses were on sick leave when this particular vacancy arose it refused to make
this assignment to the claimant. I note that on occasion female nurses have had assignments altered or
refused as the needs of the patients and the service required.
5.7 I consider that the hospital management has to ensure the effective administration of patient care and to
apply the provisions of the equality legislation. I note that the hospital argues that it takes into account both health and safety considerations and medical considerations and allocates its staff accordingly. In this regard I note that Labour Court
Determination 7/95 states; "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 is 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"
5.8 I consider that the question to be decided is whether or not the hospital treated the claimant "less favourably on account of being a male". I note that the claimant was assigned in this instance was to a task within the range of responsibilities for which he is employed and that he has since been released to carry out C.P.N. relief work arising from his inclusion on the panel. I also note that the hospital took health and safety issues into consideration in relation to this
particular assignment. It has not been demonstrated to me that there is a pattern of discrimination based on zsex, in the hospital.
5.9 I also note that the union claims that the claimant was discriminated against because he was denied the experience that can be gained from this work and which would enable him to further his career. The hospital has argued that while not diminishing the value of community work experience, the criteria used in determining suitability for promotional purposes are very wide-ranging, and include skills in leadership, decision making, staff motivation and training, communication, and clinical experience and knowledge and an ability to take on responsibility. I note that the claimant was not available to carry out relief work arising from his inclusion on the panel prior to the date in question because he was acting in a post at a grade higher than his current one. I consider that the hospital has already provided him with opportunities to
widen his experience and as I have already said he has since been assigned to the C.P.N. work.
5.10 The union has also claimed that the claimant was discriminated against in terms of Section 2(c) of the Act. I have examined this claim. This allegation that the claimant was discriminated against in terms of Section 2(c) of the Act is not supported by the evidence available to me. I note that the claimant on one occasion (the subject of this claim) was not
assigned to C.P.N. duties but continued to be assigned to tasks within the range of duties and responsibilities for which he is employed. I further note that prior to that date he had not been available for any assignments arising from his inclusion on thispanel as he had been acting up in a Deputy Nursing Officer post. He has since been assigned to relief C.P.N. work arising from his inclusion on this panel. As a minimum taking into account the judgement in the Nathan v Bailey Gibson case (Supreme Court 375/92) I would require evidence that a requirement was imposed on him which bears more heavily on the claimant than on members of the other sex. I note that in this case the claimant was obliged to continue to work in the hospital to provide nursing care to psychiatric patients and this is a requirement with which he and all male and female psychiatric nurses can comply and could be considered to be an essential requirement for employment as a psychiatric nurse. I consider that this does not constitute a practise which bears more heavily on the claimant than on the members of the other sex. Consequently I do not consider that the claimant was indirectly discriminated against by the hospital.
6 Recommendation
6.1 In view of the above conclusions I am satisfied that the employer did not discriminate on the basis of sex against the claimant.
______________________
Ms. Mary Solan Avison,
Equality Officer.
20 September 1996.