Kiersey(Represented by the Irish Nurses Organisation) v East Coast Area Health Board(Represented by Roger Greene & Sons, Solicitors) and St. Colman's Hospital
1. DISPUTE
1.1 The dispute concerns a claim by Ms. Jennifer Kiersey, that she was indirectly discriminated against by St. Colman's Hospital in terms of Section 6(1), 6(2)(a), 6(2)(b) and 6(2)(c) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when it failed to appoint her to a permanent part-time position. She also alleges that she was victimised within the meaning of Section 74(2) of the 1998 Act.
1.2 The Union, on behalf of the complainant, referred this claim to the Director of Equality Investigations on 13th August, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 4th February, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received and a joint hearing took place on 14th January, 2004. Additional information was received from the respondent with the final correspondence received on 25th March, 2004.
2. SUMMARY OF THE CLAIMANT'S SUBMISSION
2.1 The complainant alleges that the East Coast Area Health Board refused to accommodate her request for flexible working arrangements on a permanent basis in line with the provisions in the Flexible Working Agreement. According to the complainant the Flexible Working Agreement was introduced to the Irish Health Services in February, 2001 and provides for an employee working any combination of hours between 8 and 39 hours per week on a permanent and pensionable basis.
2.2 The complainant commenced employment with St. Colman's Hospital in January, 2001 as a temporary Staff Nurse. She was continuously employed by St. Colman's Hospital working between 16 and 24 hours. According to the complainant she applied for the position of permanent Staff Nurse in St. Colman's Hospital in February, 2001 and she was successful in her interview. However she declined the offer of a permanent full-time Staff Nurse post due to family commitments. In November, 2001 the complainant again applied for a permanent post and was again successful in her application. A panel of four was formed from this competition with the complainant placed in fourth position. It is the complainant's contention that the person placed first on the panel was offered and accepted a full-time permanent position while the persons placed second and third were offered and accepted permanent flexible working.
2.3 The complainant states that on 14th April, 2002 a Staff Nurse resigned from her permanent part-time position in St. Colman's Hospital. It is the complainant's contention that this created a further opportunity for the Hospital to offer her permanent flexible working. Three weeks prior to this vacancy arising the complainant wrote to the East Coast Area Health Board stating:
(a) that she could not accept a full-time permanent contract due to family commitments
and
(b) that she would be willing to accept a permanent part-time post should one become available.
The complainant notes that the Flexible Working Agreement states that:
"Staff may be recruited to fill vacancies on a part-time permanent and pensionable basis in circumstances where the option of filling the position from among existing staff has been fully explored".
2.4 The complainant states that in May, 2002 St. Colman's Hospital recruited seven overseas nurses on a full-time basis and in June, 2002 a further group of overseas nurses were recruited on a full-time basis. On 4th June, 2002 the complainant was informed by the Director of Nursing that her hours would be further reduced in the near future. As the breadwinner in her family the complainant wrote to the Director of Nursing on 19th June, 2002 seeking clarification and an explanation for what she perceived to be indirect discriminatory treatment. According to the complainant the response from the Director of Nursing failed to address the issues she raised. From July, 2002 the number of hours of work offered to the complainant dramatically decreased and, as a result, the complainant was forced to seek employment elsewhere.
2.5 According to the complainant notes there were 12 vacant Staff Nurse positions when she applied for a permanent post and a further job-sharing position became available. It is her contention that the refusal to accommodate her request amounts to indirect discrimination under the Employment Equality Act, 1998. In this regard the complainant cites the Equality Officer recommendation in Weir v St. Patrick's Hospital1 which applied the tests laid down by the High Court in Conlon v University of Limerick2 and in which the Equality Officer held that a policy of not considering applications for jobsharing "adversely impacts on females rather than on males both within the respondent and generally". The complainant further cites the case of Burke and NUI Galway3 in which the Equality Officer in that case held that while a full-time employee does not have an automatic entitlement to job-share at will, a full-time employee is entitled to have their application to job-share dealt
with in a manner which is free of any discriminatory bias. The complainant says that the difference here is that she was not seeking to reduce her hours as she was already working part-time. Rather she wished to access the security attached to a permanent position. The complainant accepts that she does not have an automatic entitlement to permanent flexible working but she believes that the decision to refuse her access to part-time work on a permanent basis was not objectively justified.
2.6 The complainant also cites the case of Enderby v Frenchay Health Authority and Secretary of State for Health4 in which the principles to be followed in an indirect discrimination case were set out by the Advocate General as follows:
"The concept of indirect discrimination is a legal concept which enables cases of unequal treatment, for which there is an objective justification, but which in fact result in the woman being disadvantaged, to be included as an instance of unlawful sex discrimination".
In this case the complainant states that the disadvantaging of female workers was affected by reference to an objective criterion and this resultant disadvantage arose from the fact that women were affected by the criterion more than men. The complainant notes that the Court has accepted the cause of that effect is linked to the social role of women. According to the complainant the Court considers indirect discrimination against women to be possible with reference to the characteristic of part-time employment "taking into account the difficulties encountered by women workers in working fulltime". The complainant also cites the Equality Officer Decision in Black v Tesco Ireland5 in which the Equality Officer states:
"It is well established in law relating to discrimination issues and part-time working that the overwhelming majority of employees working part-time or seeking access to part-time work are female".
It is the complainant's contention that it is not an essential requirement of the job of a Staff Nurse to work full-time and this is accepted by the respondent as 34% of this grade job-share in the respondent organisation.
2.7 The complainant concludes that the respondent's failure to provide her with permanent part-time employment as a staff nurse is indirectly discriminatory and the reason for their failure to do so has not been objectively justified.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent notes that the complainant is claiming discrimination on the grounds of gender, marital status and family status under the Employment Equality Act, 1998. Despite what the complainant contends the East Coast Area Health Board states that it provided the complainant with flexible working hours. Without prejudice to this position the respondent says that the grievance the complainant has in relation to the permanency of her part-time work is a matter for a different legal forum and is not a discriminatory issue. For this matter to come within the scope of the equality legislation the complainant would have to have been treated less favourably than another person because she is a woman, because she is married or she has children.
3.2 The respondent states that the complainant commenced employment in St. Colman's Hospital on 3rd January, 2001 as a temporary Staff Nurse on the relief panel to cover annual, sick or other leave. It also confirms that the complainant applied for the position of permanent staff nurse on two occasions and she was successful on both occasions but declined both offers. In the second competition (in November, 2001) the respondent states that each of the other successful candidates signed full-time contracts. According to the respondent applicants placed first and second on the panel were offered jobsharing
and they accepted it. The person placed third on the panel was offered and accepted a permanent full-time position.
3.3 According to the respondent there were twelve permanent staff nurse positions vacant when the complainant was offered a full-time position. The respondent states that this was the allocated quota of staff nurses and if the complainant had been employed on a part-time or job-sharing basis then the Hospital would have exceeded its quota of staff nurses.
3.4 The respondent confirms that a staff nurse resigned from her job-sharing position around April, 2002. This position had been shared with another staff nurse who was promoted around this time. According to the respondent this was a permanent full-time post which had previously been shared by two jobsharing partners. The respondent says that the Agreement on Flexible Working in the Health Service is "subject to the overriding requirement that there would be no adverse impact on the capacity of health service employers to meet their operational requirements". It is the respondent's contention that if the complainant had been offered this job-sharing post the Hospital would have exceeded its quota of permanent staff nurses by a half a post.
3.5 The respondent does not accept that the complainant would have to accept a permanent post on a full-time basis and then reduce her hours. Rather the complainant was clearly advised that if a permanent part-time position became available she would be welcome to apply for it. The respondent states that twelve permanent staff nurse positions, which were vacant when the complainant was offered a permanent full-time position were filled as follows:
Number of Female Staff Nurses .................. 97%
Number of Male Staff Nurses .................... 3%
Number of Staff Nurses who are married ...... 92%
Number of Staff Nurses with families .......... 83%
3.6 The respondent confirms that the complainant was informed on 4th June, 2002 that her hours of duty could be reduced as her temporary position was to cover annual, sick or other leave and this cover requirement was reducing. According to the respondent the complainant continued to be offered work but her records show that she was not always available for work.
3.7 The respondent also notes that St. Colman's Hospital tried to accommodate the complainant as much as possible allowing her to commence duty at 9.30a.m., instead of the usual 8.30a.m., so that she could take her children to school. The respondent says that even though the complainant was employed to cover annual, sick or other leave she was not flexible about the days she could work and she only worked two days a week.
3.8 The respondent notes that the complainant is only making a claim of indirect discrimination. It is the respondent's contention that the complainant has not established facts from which it may be presumed that there had been indirect discrimination in relation to her. The respondent says that the percentage breakdown of the staff demographic (see paragraph 3.5 above) clearly shows that most of the staff of the hospital are female, married and with families thus sharing the same relevant characteristics as the complainant. The respondent cites the Equality Officer decision in the case of Walsh v Tesco Ireland6 in which it is stated:
"a claimant cannot maintain that she has been discriminated
against on the grounds of sex on the basis that other women
have been given a facility and she has not".
3.9 The respondent notes that the complainant has made no argument in support of her claim of victimisation.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The first issue to be addressed is whether the Hospital or the Health Board is the employer in this case and having decided that issue whether or not I have jurisdiction to investigate this claim. If I find that I do have jurisdiction to investigate this claim then the next issue to be addressed is whether or not the respondent indirectly discriminated against the complainant on the grounds of gender, marital status and family status in terms of Sections 6, 8, 22 and 31 of the Employment Equality Act, 1998. I note that at the hearing of this claim the complainant withdrew her claim of victimisation under Section 74(2) of the 1998 Act and confirm this subsequently in writing. In making my decision in this claim I have taken into account all of the submissions, both written and oral, made to me by the parties.
Facts
4.2 Both parties agree that the complainant commenced employment with the Hospital in January, 2001 as a temporary Staff Nurse. She generally worked 16 hours per week but on occasion worked up to 24 hours per week. On two occasions the complainant applied for the position of permanent full-time Staff Nurse and she was successful on both occasions. However, she declined the offer of a permanent full-time position on both occasions due to family commitments. On the second occasion when the complainant was successful in the competition (in November, 2001) she was placed fourth on the panel of four. The persons placed ahead of the complainant all accepted their appointments and shortly after the appointment of the persons placed first and second on the panel they were offered job-sharing which they accepted. The complainant was offered an appointment as a permanent full-time Staff Nurse on 20th February, 2002 and on 20th March, 2002 she wrote to the respondent stating that "due to family commitments I am unable to accept your offer of a permanent whole-time and pensionable appointment at present. Should a position as permanent part-time or job share become available I would be willing to accept". The complainant was not offered a permanent part-time or job share position. Instead her hours were dramatically reduced after 4th June, 2002 and she was considered that she was left with no other option but to resign.
Correct Respondent
4.3 The first issue to be addressed is that of the correct employer. The initial referral in this claim is against the Hospital yet in her submission the complainant states that the dispute is with the Health Board. The Hospital is a facility which is managed by the Health Board. The Health Board is responsible for recruitment to the Hospital and for the payment of Hospital staff. I raised the issue with the parties at the hearing of this claim on 16th January, 2004 that the referral named the Hospital as the employer but in her submission the complainant's arguments were against the Health Board as the employer. Following the hearing of this claim the Health Board stated in writing (by letter dated 9th February, 2004) that it is the employer and therefore the correct respondent and in further correspondence dated 16th February, 2004 the respondent states that while the Health Board is the correct respondent in this claim it was not named in the referral and consequently the complaint is not properly before the Office of Equality Investigations. I am satisfied that the Health Board is the correct respondent in this claim. While the complainant failed to name the Health Board in her referral of this claim I note that correspondence from this office to the Hospital was dealt with by the Health Board from an early date. Furthermore the Health Board assumed the role of respondent and only raised an objection to fulfilling this role after I had raised the issue at the hearing of this claim. Consequently I am satisfied that I have jurisdiction to proceed with the investigation of the substantive issue in this claim.
Indirect Discrimination
4.4 Section 22 (1) of the Employment Equality Act, 1998 provides for indirect discrimination on the gender ground and says:
"Where a provision ... which relates to any of the matters specified in paragraphs (a) to (e) of section 8(1) ...
(a) applies to both A and B,
(b) is such that the proportion of persons who are disadvantaged by the provision is substantially higher in the case of those of the same sex as A than in the case of those of the same sex as B, and
(c) is not appropriate and necessary and cannot be justified by objective factors unrelated to A's sex,
then, for the purposes of this Act, A's employer ... shall be regarded as discriminating against A on the gender ground contrary to section 8 ..."
4.5 The complainant alleges that she was indirectly discriminated against when she was not afforded the opportunity of working part-time flexible hours on a permanent basis by the respondent. It is the complainant's contention that she sought a permanent part-time or job share pensionable position in March, 2002 but her request was not facilitated. According to the complainant this is indirectly discriminatory as it is mainly married females with children who are forced to work part-time hence the requirement to work full-time adversely impacts on her more than on male staff members or female staff members without children. At the hearing of this claim the respondent stated that the complainant did not have to be in a permanent position to seek permanent part-time work but she did have to be deemed suitable for a permanent position and I note that she was on two occasions. On 20th March, 2002 the complainant informed the respondent that she would be willing to accept a permanent part-time work or a job share position. The respondent acknowledged receipt of that letter and informed the complainant that the Hospital would be made aware of her request.
4.6 At the hearing of this claim the Hospital stated that it was informed that the complainant was seeking a job sharing position but it said that it was unaware that she was seeking a permanent part-time position. According to the Hospital the letter which the complainant sent to the respondent (i.e. letter dated 20th March, 2002) was not forwarded to it. The Hospital says that it was not aware that the complainant was seeking a permanent part-time position until August, 2002. I note that the complainant spoke with Hospital Management (there is a conflict between the parties as to whether it was the Director of Nursing or the Assistant Director of Nursing) in January, 2002 and according to the respondent in its submission the complainant was seeking access to job sharing or permanent part-time work. I am satisfied, therefore, that the Hospital was aware in January, 2002 that the complainant was seeking access to permanent part-time work.
4.7 I note that the Labour Court in the case of Eason & Son Ltd v Brown7 states as follows:
"It is, however, noteworthy that in none of the cases referred to in this determination did the ECJ require a comparison between the gender composition of part-time workers relative to full time workers within the employment concerned. Rather, the Court was prepared to take judicial notice of the fact that women are far more likely to be engaged in parttime work than men and consequently, any disadvantage attached to part-time working constitutes, prima facie, indirect discrimination against women."
In this case the complainant would have been offered a permanent position if she had been prepared to work full-time. I note that the respondent has said that the complainant did not have to be in a permanent full-time position to apply for a permanent part-time position in accordance with the Flexible Working Agreement the principle objective of which was to "facilitate the retention and recruitment of staff and the maintenance of the workforce at the levels required to deliver and develop services into the future while seeking to meet the aspirations of staff to access working hours suited to their individual circumstances". However, despite having 12 vacant Staff Nurse positions the respondent did not entertain the complainant's request for a permanent parttime position but was willing to offer her a permanent full-time position. Hence the provision to work full-time to be given a permanent position adversely impacts on persons who wish to work part-time and effectively on women who, due to family commitments, are more likely to want to work
part-time.
4.8 Under Section 22 of the 1998 Act it is not discriminatory to give preferential treatment to persons who can comply with a provision which impacts on one group of persons more than another if it can be objectively justified. In this case the respondent states that there was a shortage of staff nurses at this time and as a result there was no nurse available to work opposite the complainant if she was offered a permanent position either on a part-time or job-sharing basis. The respondent states that, had she been offered such a position, a Domestic/Attendant would have had to work opposite her. On this basis the respondent submits that patient care and the service needs of the Hospital would have been compromised by offering the complainant a permanent parttime post when initially requested. The respondent contends that the decision not to offer the complainant permanent part-time work was wholly appropriate and necessary and is justified by objective factors unrelated to the complainant's sex, marital or family status.
4.9 The fact is that when the complainant indicated to the respondent on 20th March, 2002 that her preference was for permanent part-time or a job sharing position the Hospital had twelve vacancies. To have facilitated the complainant's request for part-time work the respondent would have complied with the spirit (as set out in paragraph 4.7 above) of the Agreement for Flexible Working and at the same time alleviated to a small extent the pressures on it which were caused by the high number of vacancies. At point 5 of the Flexible Working Agreement it states:
"Every application will be considered on its own merits and within the context of the employment concerned. Consideration of such applications will involve:
(a) An assessment by the appropriate manager as to whether the applicant can be facilitated having regard to patterns of work within the organisation;
and
(b) An assessment by the appropriate manager of the capacity of the unit/service to maintain required operational levels having regard to overall staffing requirements."
At the hearing of this claim the Hospital stated that all the Staff Nurse positions were deemed suitable for flexible working under this Agreement. Furthermore I note that there is a provision in this Agreement which states that:
"Each employer reserves the right, in exceptional circumstances, to require individuals in the flexible working arrangements to resume duty temporarily or otherwise on a full-time basis ...".
I note, therefore, that the respondent could have offered the complainant permanent part-time work and reviewed it after a realistic period of time e.g. six months and if the respondent could show that patient care had been compromised then it had the right under this Agreement to request the complainant to work full-time. By failing to adopt this approach the respondent has also failed to objectively justify its decision not to allow the complainant to fill one of the many vacant positions on a permanent part-time basis. In relation to the respondent's contention that a Domestic/Attendant would have had to work opposite the complainant I note that the Hospital had a number of substitute Staff Nurses working on a part-time basis and it could have explored the possibility of having one of these nurses work opposite the complainant.
5.10 As I have found that any disadvantage attached to part-time working constitutes, prima facie, indirect discrimination against women it is not necessary to examine this claim in terms of marital status and family status.
6. DECISION
6.1 Based on the foregoing I find that the East Coast Area Health Board indirectly discriminated against Ms. Jennifer Kiersey in terms of Section 22 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when it failed to objectively justify its decision not to offer her a permanent part-time position of Staff Nurse in St. Colman's Hospital despite having 12 vacant positions for Staff Nurse at the time.
6.2 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order the East Coast Area Health Board to pay Ms. Kiersey the sum of €6,000 by way of compensation for loss of income and €10,000 for stress suffered as a result of the discrimination.
___________________
Gerardine Coyle
Equality Officer
7th April, 2004
1Equality Officer Recommendation - DEC-E-2001/011 of 26th February, 2001
2High Court
3Equality Officer Decision - DEC-E-2001-012
4ECJ - C-127/92 [1993] ECR I-5535
5Equality Officer Decision DEC-E2003-003
6Equality Officer Decision - DEC-E2001-042
7Labour Court Determination - EED036