FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : MIDLAND HEALTH BOARD - AND - MS MAUREEN BROWNE (REPRESENTED BY THE PSYCHIATRIC NURSES' ASSOCIATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Appeal against Equality Officer's Recommendation EE22/98. This is a claim by Ms. Maureen Browne (the claimant) that the Midland Health Board (the Health Board) discriminated against her on the grounds of her sex in terms of Section 2(a) and (c) of the Employment Equality Act, 1977 (the Act). It is further alleged that the Health Board victimised the claimant in terms of Section 2(d) of the Employment Equality Act, 1977, and in breach of Section 3 in relation to her conditions of employment.
The Health Board denies the claim.
BACKGROUND:
2. The background of the case is accurately recited in the report of the Equality Officer (EE22/98).
The Equality Officer found that the Health Board did not discriminate against the claimant contrary to the terms of the Act. It is against the recommendation of the Equality Officer that the claimant appealed to the Court.
The Labour Court heard the appeal on the 28th of April, 1999, in Longford. Both parties made written and oral submissions.
In the course of the hearing the PNA, on behalf of the claimant, accepted that the substance of the complaint is that the claimant was treated less favourably than a male colleague, Mr. Harrington, in a reallocation of duties implemented by the Chief Nursing Officer, Mr. Ward, in May, 1997. This, it is alleged, amounted to discrimination against the claimant on grounds of her sex.
It is also accepted on behalf of the claimant that the other matters referred to as allegedly constituting ongoing discrimination or victimisation in the submissions made to the Equality Officer and to the Court, are regarded as being essentially an extension of the initial act of discrimination.
SUBMISSIONS OF THE PARTIES:
3. In evidence, Mr. Ward told the Court that following his appointment as Chief Nursing Officer in the Midland Health Board in 1994, two additional Assistant Chief Nursing Officers were also assigned to his area of responsibility. This, he said, necessitated a re-organisation of responsibilities amongst the existing compliment of Nursing Officers, which then stood at three. All of the Assistant Chief Nursing Officers were invited to make submissions to Mr. Ward as to their preferences within the proposed re-organisation. Because of an industrial relations problem arising from the proposed re-organisation, none of the Assistant Chief Nursing Officers choose to avail of this opportunity.
At this time, the claimant had responsibility for community based services in Longford and Mullingar. Mr. Ward proposed to relieve the claimant of responsibility for the Mullingar area, and to assign responsibility for this area to another Assistant Chief Nursing Officer. Proposals to this effect were set out in a letter sent by the Personnel Officer of the Health Board to the General Secretary of the Psychiatric Nurses Association and the Branch Secretary of the Association of Nursing Officers of SIPTU on the 21st of April, 1995.
The implementation of the proposed re-organisation was deferred by Mr. Ward in the hope that the industrial relations problem could be resolved, and that concensus could be reached on the re-organisation amongst those affected. When the matter was not resolved by May, 1997, Mr. Ward decided to proceed with the implementation of his proposals.
Mr. Ward told the Court that in implementing the proposal he was concerned to ensure minimum disruption in the attendance pattern of those affected.
Having reviewed the situation, he decided not to re-assign Mr. Harrington as originally proposed, since this would involve a change in his roster.
It is the claimant's case that she did not wish to have her duties altered, but that she had no choice in the matter. By contrast, Mr. Harrington did not wish to be re-assigned and was accommodated in his preference by Mr. Ward.
The claimant also contends that the preferences of all of the male Assistant Chief Nursing Officers involved in the re-organisation were accommodated. In the case of the claimant, who was the only female Assistant Chief Nursing Officer involved, she was forced to accept compulsory re-assignment.
CONCLUSIONS OF THE COURT:
The Claimant's case turns on whether or not the decision of the Chief Nursing Officer to alter the claimant's duties, in May, 1997, constituted discrimination.
On the evidence, the Court is satisfied that the claimant only expressed a view as to her proposed re-assignment in June, 1997 after Mr. Ward had announced his decision. The Court is also satisfied that, insofar as Mr. Ward departed from his original proposals in respect of Mr. Harrington, he did so because of the effect which those proposals would have had on Mr. Harrington's roster arrangements. No such consideration arose in the case of the claimant.
It was accepted on behalf of the claimant that each of the other occurrences relied on as allegedly constituting discrimination flowed from the implementation of the re-organisation of duties in May, 1997. It was also accepted on behalf of the claimant that, if this initial act did not amount to discrimination, the consequential occurrences could not amount to discrimination or victimisation. Independently of this concession, on the facts disclosed at the hearing, the Court is satisfied that the reallocation of duties by Mr. Ward took place as part of the normal management of the Health Board. It finds as a fact that the Health Board's treatment of the claimant was not related to her sex and, therefore, could not amount to discrimination under Sections 2(a), 2(c) and 3 of the Act.
DETERMINATION:
In the circumstances, the Court is satisfied that the claimant was not discriminated against on grounds of her gender or unlawfully victimised by the Health Board. The recommendation of the Equality Officer is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
9th July, 1999______________________
C.O'N./D.T.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.