FULL RECOMMENDATION
SECTION 8(1)(A), ANTI-DISCRIMINATION (PAY) ACT, 1974 PARTIES : EASTERN HEALTH BOARD (REPRESENTED BY THE HEALTH SERVICE EMPLOYERS AGENCY) - AND - TIMOTHY CROWE, MICHAEL MCCARTHY AND JOHN REYNOLDS (REPRESENTED BY FRANCES MEENAN, SOLICITOR) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Appeal by the three named male employees against Equality Officer's recommendation No. EP 14/1998 concerning a claim by the three employees that they are entitled to the same rate of remuneration as that paid to three named female comparators in terms of Section 3(a), 3(b) and 3 (c) of the Anti-Discrimination (Pay) Act, 1974.(The Act)
BACKGROUND:
2. All the claimants and the comparators are employed by the Eastern Health Board as psychiatric nurses attached to the Rehabilitation Service in St. Brendan's Hospital. The three named male claimants argue that they perform "like work" within the meaning of Section 3 of the 1974 Act and are, therefore, entitled to the 90% acting up allowance which is being paid to the three named female comparators. This 90% allowance was agreed by a Joint Union/Management Forum that was established on foot of an Equality Officer's recommendation (EE 14/1983) which ruled that, with effect from the repeal of Section 17 (2) (c) and 17 (2) (d) of the Employment Equality Act, 1977, in September, 1982, the practice of promoting on the basis of segregated panels was contrary to the provisions of Section 2 (a) and 3 of the Employment Equality Act, 1977.
On foot of this Forum an alternative method was used in respect of promotion. It was decided to suspend the filling of permanent posts pending agreement on a new promotion system. In the interim such vacancies were to be filled on an "acting up" basis under the seniority system. There was then a "transitional arrangement" for the filling of the posts for the period September, 1982 to February, 1987, which included a "once off" confined competition to be held in each psychiatric hospital. All nurses employed in the particular hospital with the
requisite qualifications were entitled to compete. The agreement also provided that any nurse who "acted up" in a supervisory post during the relevant period and then was not successful in the confined competition was entitled to 90% of the difference between the maximum of the salary of the nurses' substantive post and the next promotional post.
The criteria set for entitlement to the 90% allowance are as follows:
- A psychiatric nurse had to act up in a substantive post during the transition period i.e. from 1982 to 1987 (a substantive post being one which was left vacant following the retirement or resignation of a staff member);
- a psychiatric nurse having applied for the once-off confined competition was unsuccessful in his/her application.
On the 1st of December, 1996, the three named male employees submitted a claim under Section 3 (a), 3 (b) and 3 (c) of the Act, to an Equality Officer for investigation and recommendation. The Equality Officer in her recommendation, which was issued on the 30th June, 1998, found that the Eastern Health Board did not discriminate against the three named male claimants on the basis of their pay in terms of Section 3 of the Act. On the 29th of July, 1998 the three named male employees through their legal representative appealed the recommendation to the Labour Court. The grounds of appeal were as follows:
1. The Equality Officer erred in law and in fact in failing to hold the respondent is discriminating and has discriminated in rates of pay against the Appellants within the meaning of the above Act and Directive 75/117/EEC.
2. The Equality Officer erred in law and in fact in failing to order that the Appellants be paid equal pay and retrospective pay three years prior to the reference of the claim.
3. The Equality Officer was incorrect in law and in fact in failing to hold that the Appellants were indirectly discriminated against.
4. The Equality Officer erred in law and in fact in disregarding or failing to attach due weight to the evidence adduced on the Appellants' behalf which was consistent only with wrong doing on the part of the Respondent. Further the conclusions in section 5 of the recommendation are incorrect in fact, in law and in the application of the law.
5. The Equality Officer's recommendation was at variance with the evidence adduced and the weight of the evidence.
6. The Equality Officer was incorrect in the weight she placed on statistical evidence.
7. The Equality Officer applied an artificial test and incorrectly interpreted the provisions of the said Act of 1974 (in particular section 2(3)).
8. The Equality Officer did not carry out an investigation which she is obliged to do under the said Act and the Labour Court is requested to carry out a full investigation.
9. The Equality Officer erred in law and in fact in that she misconstrued the onus devolving on the Appellants and imposed an unreal or alternatively an artificial onus on the Appellants.
10. The Equality Officer misdirected herself in law and in fact by taking into account what she should not have taken into account.
11. The Equality Officer's recommendation was against the evidence or alternatively inconsistent with the evidence as produced by the Appellants.
12. The Equality Officer erred in law and in fact in deciding that the Appellants were not entitled to equal pay under the said Act.
13. Such further or other grounds may arise at or be put forward at the hearing of the said appeal.
14. The Labour Court is asked to give reasoning for its determination and if appropriate make reference to the European Court of Justice.
The Court heard the appeal on the 21st of January, 1999. Both parties made written submissions to the Court and expanded orally on their submissions at the hearing. The hearing was adjourned to enable the parties to provide additional information which was considered by the Court. Further hearings were held on the 2nd February, and 16th May, 2000.
DETERMINATION:
THE FACTS
This is an appeal on behalf of three named male appellants that they are entitled to equal pay for like work with three named female comparators within the meaning of Section 3 (a), (b) and (c) of the Anti-Discrimination (Pay) Act, 1974 and the Equal Treatment Directive 75/117/EEC.
The claim is for the payment of a 90% "acting up" allowance paid to the three female comparators, but not to the claimants.
The appellants are three male Psychiatric Nurses. An Equality Officer's Recommendation (E.E. 14/83) ruled that, with effect from the repeal of Sections 17 (2) (c) and 17 (2) (d) of the Employment Equality Act, 1977 (the Act), by S.I. 302 of 1982, the practice of promoting nurses on the basis of sex segregated panels was contrary to the provisions of Section 2 (a) and 3 of the Act. The Equality Officer stated that any action taken by the Union to attempt to have the practice continued would be in contravention of Section 9 of the Act.
Until 1982, promotion to supervisory positions in the psychiatric service was governed by a 1971 Promotions Agreement, which provided for promotion on the basis of seniority on sex segregated panels.
In order to comply with the Equality Officer's Recommendation E.E. 14/1983 and with the legislation, the employers and union set up a Joint Union/Management Forum to devise a new employment practice to ensure equality of promotion and to compensate those who might previously have been assured of promotion under 1971 Promotion Agreement. The following points were made to the Court:
The Unions wished to secure arrangements which would meet the expectations of their members who had been acting up or within range of promotion under the seniority system.
Following extensive negotiations, conducted against the background of legal constraints, proposals emerged which were agreed upon.
It took some time to finalise an agreement. At the commencement of the Forum's deliberations, it was jointly agreed that during this time:
The filling of permanent vacant posts would be suspended pending the new promotion system.
Such vacancies were to be filled on an acting up basis, based on the segregated panels and on seniority within the panels.
Any person appointed on an acting up basis during this period received full promotional allowances. Acting up meant that all the duties of the senior post were also carried out.
In 1987 an agreement was reached at the Joint Union/Management Forum and an arrangement was entered into to fill the permanent vacancies, which had arisen during the interim period, i.e. September 1982 to February, 1987.
This arrangement provided for a once off confined competition to be held in each psychiatric hospital, open to all nurses with the requisite qualifications and experience.
In order to maintain industrial relations it was agreed that any nurse who fulfilled the following criteria;
a. they had previously been acting up in a substantive role at any time during the period September, 1982 to February, 1987;
b. applied for but were unsuccessful in the confined competition;
would be entitled thereafter to receive an allowance of 90% of the difference between the maximum of their salary as a nurse and the maximum of the next promotional post. The Court accepts that these were the agreed arrangements entered into and accepted by both sides.
The appellants' case is that the three comparators are engaged on like work and are paid the 90% acting up allowance and therefore they are entitled to the same allowance. The appellants' case is also that the three comparators did not come within the criteria laid down in the 1987 Agreement.
FINDINGS
It is common case that both claimants and comparators are employed on "like work". The Court must, therefore consider whether there were grounds other than sex for the difference in pay.
Evidence was given on behalf of the appellants to the Court that the three comparators did not in fact come within the criteria laid down in the arrangement of 1987. It was contended that comparator number 1 (Ms. C.) had not acted up in a "substantive post". It was contended that comparator number 2 (Ms. D.) had acted up but this was due to an administrative error, and furthermore that she did not attend for interview in the confined competition, and that comparator number 3 (Ms. G.), had not acted up in a "substantive post" at the requisite time. At the Court hearing on the 16th of May, 2000, the appellants withdrew from the claim one of the comparators (Ms. G), stating that evidence had been received that this person did comply with the criteria laid down by the Joint Union/Management Forum, therefore she was no longer considered as a comparator.
The Court has to ascertain whether the two remaining comparators fulfilled the criteria for the confined competitions.
From the evidence presented to it, the Court is satisfied that both remaining comparators fulfilled the terms of the criteria laid down by the Joint Union/Management Forum and accepted by the Board.
Ms. C. held a substantive post in Unit F within the terms of the Joint/Management Forum during the requisite time (albeit she has absences due to sick/compassionate leave) and had applied for the confined competition.
Ms. D. held a substantive post in Unit 1C and had applied for the confined competition.
The representative for the appellants maintained that the comparators were in "sight of promotion" without actually qualifying, and following representation from their Union, were successful in attaining the 90% allowance. The Court is satisfied that this was not the case in respect of these two comparatorss but that they in fact qualified in their own right. This Court is satisfied that the comparators fell within the criteria set down in the 1987 arrangement.
Further, the Court is satisfied that the appellants, on the evidence presented to the Court, did not satisfy the criteria for the confined competition. Two of the appellants did not apply for the confined competition and the third did not have the requisite acting up experience.
Therefore, the Court finds that there were grounds other than sex to justify the differences in pay between the claimants and the comparators.
DETERMINATION
The Court finds that the appellants were not discriminated against within the meaning of Section 3 of the Anti-Discrimination (Pay) Act, 1974.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th August, 2000.______________________
TOD/BCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.