O'NEILL AND THE SOUTH EASTERN HEALTH BOARD(REPRESENTED BY THE HEALTH SERVICE EMPLOYERS AGENCY)
1. DISPUTE
This dispute involves a claim by Ms. Mary O'Neill that she is entitled to the same rate of remuneration as that paid by the South Eastern Health Board to a named male comparator, in circumstances where it is accepted by the respondent that the parties perform "like work" with each other in terms of section 7 of the Employment Equality Act, 1998, but contends that its practice is lawful by virtue of section 19(5) of that Act.
2. BACKGROUND
2.1 The complainant and comparator are both employed as Psychiatric Clinical Nurse Manager Grade II with the respondent and work in the community nursing area. The nature of the work requires seven day cover. The complainant works a certain shift, including either a Saturday or a Sunday and the comparator works the remaining days to provide a full seven day cover. Both she and the comparator are on the same basic incremental pay scale (at the appropriate point) and receive the standard allowances for unsocial hours etc. However, the comparator receives an allowance - community allowance - which the complainant does not receive. It is this allowance which is the subject of Ms. O'Neill's claim. The respondent does not dispute that the complainant and comparator perform "like work" with each other or that the comparator receives the community allowance and the complainant does not and submits that there are grounds other than gender for the difference in the rates of remuneration.
2.2 The complainant referred a claim of equal remuneration in terms of sections 7 and 19 of the Employment Equality Act, 1998 on 1 July, 2002. The Director delegated the complaint to Ms. Mary Rogerson, Equality Officer, for investigation and decision. Ms. Rogerson held a preliminary hearing on the complaint on 15 November, 2002 and a timeframe for receipt of submissions on grounds other than gender was agreed. Subsequently, for personal reasons, Ms. Rogerson was unable to continue with the investigation and the Director re-assigned the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision. A final hearing on the complaint took place on 3 July, 2003. A numbers of issues emerged at this hearing which required clarification and gave rise to correspondence subsequent to the hearing. The parties confirmed that the Equality Officer was in possession of all the necessary information from their perspective on 8 December, 2003.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is employed as a Psychiatric Clinical Nurse Manager Grade II with the respondent. On 27 September, 2001 she was assigned to community nursing as part of a staff rotation system operated by the respondent in that sector of nursing. She generally works Monday, Thursday, Friday and either Saturday or Sunday and the comparator (Mr. A) works the remaining days to provide full seven day cover in respect of the service. The comparator (Mr. A) receives the community allowance as did Mr. B, whom the complainant contends she ultimately replaced on his retirement. She contends that non-payment of this allowance to her constitutes discrimination on grounds of gender.
3.2 The complainant states it was her understanding that staff assigned to community nursing had no access to night duty and the associated premium payments. Mr. A attended the hearing and confirmed this understanding - this was accepted by the respondent. Mr. A states that in 1987 both Mr. B and himself approached the then Nursing Manager about the loss of income they were suffering following their assignment to the psychiatric community nursing service and they were subsequently paid the social inconvenience allowance (now called the community allowance). He adds that the service was a new one and he and Mr. B were the first members of staff to be assigned to it. In approving the allowance to both him and Mr. B the Nursing Manager had informed him (Mr. A) it was to compensate him for loss of access to night duty (and the associated premium payment) and he did not recall any mention that it was to be paid to him on a personal basis. Mr. A also states that when either he or Mr. B was absent they were covered by staff from the wards. These staff received the social inconvenience allowance during such periods and also retained their right to night duty.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent accepts that the complainant and the named comparator (Mr. A) perform "like work" in terms of section 7 of the Employment Equality Act, 1998, but contends that the difference in the rates of remuneration paid to the parties is not based on gender. It states that the comparator and another male colleague (Mr. B) were the forerunners in establishing the programme which delivered psychiatric nursing care to patients in the community in the mid -1980's. Whilst Mr. A retained access to weekend work, he did lose his entitlement to night duty (and the associated premium rate of remuneration) on transfer to community nursing. The respondent states that in 1987 both Mr. A and Mr. B were paid the community allowance (then called the social inconvenience allowance) on foot of a local decision by Hospital Management, in recognition of their particular endeavours in the early development of psychiatric nursing services in the community.
4.2 The respondent states that payment of the allowance is governed by Circulars centrally negotiated between the relevant trades unions and health sector employers and their representatives. It adds that the complainant receives the unsocial hours' premium and is therefore not eligible for payment of the community allowance in accordance with those Circulars as she has not suffered any loss in income as a result of her transfer to the community nursing area. The respondent accepts that Mr. A receives payment of the community allowance in circumstances which are not compatible with the terms of the relevant Circulars but submits that it is paid on a personal basis which is unrelated to his gender. It states that there are eight psychiatric nursing staff currently working in the community nursing area in the Carlow/Kilkenny Mental Health Services - comprising six females and two males. Five of these staff (four females and one male) qualify for payment of the community allowance and receive it. Of the remaining three personnel only Mr. A receives the allowance - the complainant and another female staff member do not qualify. In addition, the respondent states that the complainant replaced a male colleague (Mr. C) in the service and this person had not received the community allowance during the period of his assignment to the service. This person had previously replaced Mr. B - who was in receipt of the allowance on the same basis as the comparator. In conclusion, the respondent submits that the rates of remuneration paid to the complainant and the comparator are lawful by virtue of section 19(5) of the Employment Equality Act, 1998.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the rate of remuneration paid to the complainant by the South Eastern Health Board, in circumstances where it is accepted by the respondent that the parties perform "like work" with each other in terms of section 7 of the Employment Equality Act, 1998, is lawful by virtue of section 19(5) of that Act. In reaching my conclusions I have taken into consideration all submission, oral and written, made to me by the parties.
5.2 The respondent accepts that the complainant and Mr. A perform "like work" in terms of section 7 of the Employment Equality Act, 1998. It further accepts that the allowance in dispute - the community allowance - is paid by it to Mr. A but is not paid to the complainant. It submits that the reasons for this date back to 1987 when Mr. A and a colleague Mr. B were granted payment of this allowance on foot of a decision by local Management in recognition of their particular endeavours in the early development of psychiatric nursing services in the community. It adds that payment of the community allowance is governed by Circulars centrally agreed between the relevant trades unions and the health employers and their representatives and that the complainant is not eligible for payment of the allowance by virtue of these Circulars. The essence of its
argument on this point is that Mr. A was granted payment of the allowance on a personal basis in 1987 and this decision was based on factors unrelated to gender.
5.3 In making such an assertion it is incumbent on the respondent to produce evidence to support its actions1. In the course of this investigation the respondent was unable to produce a single piece of documentary evidence to demonstrate that Mr. A was paid the allowance on a personal basis, in fact it stated at the hearing that there were no such papers in existence. No witness was produced by the respondent to give evidence as to the events at the time the decision was made. In contrast Mr. A attended the hearing and gave evidence as to the circumstances surrounding the discussion he and Mr. B had with the Nursing Manager at that time, which resulted in payment of the allowance. In the course of this evidence Mr. A stated that (i) the Nursing Manager told him that payment of the allowance was to cover loss of access to night duty rates and (ii) he (Mr. A) did not recall any reference to payment of the allowance being made on a personal basis. I found Mr. A's evidence to be forthright and credible, whereas I find it astonishing that no record of why a substantial allowance was paid to an employee was ever made, or retained, by the respondent on the comparator's personal file. I am satisfied, on balance, that no such condition in respect of payment of the allowance was indicated to Mr. A at that time (1987) - which is the root of the respondent's argument on this issue.
5.4 The respondent argues that payment of the community allowance is governed by Circulars centrally agreed between the relevant trades unions and the health employers and their representatives and that the complainant is not eligible for payment of the allowance by virtue of these Circulars. I have examined the Circular in question and I am satisfied that paragraph 3.1 of the Circular would exclude the complainant from entitlement to the allowance. I note the respondent accepts that the same paragraph would also exclude Mr. A from payment of the allowance. It must therefore show that the reasons for its departure from the Circular are based on genuine issues unconnected with any discriminatory ground. I note that both the complainant and the comparator were denied access to night duty (the reason Mr. A states he was granted the allowance) for the duration of their assignment to the community nursing service and there is no provision in the Circular granting payment of the allowance for such losses. The European Court of Justice held in Brunnhoffer v Bank der Osterreichischen Postsparkasse AG2 that where a man and a woman perform work of equal value there must be equity in respect of each component of remuneration paid to them, unless there is objective justification unconnected with their gender for the difference in the rates of remuneration. The respondent accepts that "like work" exists between the parties and I am satisfied that the complainant and the comparator are in very similar, if not identical situations - in that both were denied access to night duty during their assignment to community nursing. The respondent argues that the comparator was involved in the early development of psychiatric community nursing and the allowance was granted to him in recognition of this work and on a personal basis. I have already rejected this argument and it follows that I must reject it again. Whilst I accept that the terms of any Circular governing an employee's conditions of employment must be applied, they must be applied in a uniform and fair manner to all employees. In addition, it would appear prudent that employers should clearly set out the terms and conditions which attach to a particular post to an employee, before that person takes up that position.
5.5 The respondent states that immediately prior to the complainant's transfer to the community area, the post was filled by a male member of staff (Mr. C) and adds that during his term in the post he did not receive payment of the community allowance. It argues that this is evidence it did not discriminate against the complainant on grounds of gender. However, I cannot accept such a proposition - the fact remains that the complainant is comparing herself to Mr. A and not Mr. C. Section 19 of the Employment Equality Act, 1998 permits such a comparison. In addition, I note the comments of O'Sullivan J in Wilton v Steel Company of Ireland3 which states that the complainant is entitled to choose her comparator and it would be an error of law for an Equality Officer to ignore such an entitlement or compare the complainant to another employee instead. Whilst I accept that treatment of a male in the same fashion as the complainant might indicate the operation of a non-discriminatory pay policy, the weight which might be
attached to such an outcome must be assessed in the overall context of the facts of each individual case. To do otherwise could leave a gateway open to frustrate the legislation by ensuring a sole male (or female) was in the disadvantaged group, although I emphasise that I make no suggestion this occurred in the instant case.
5.6 On the basis of my comments in the preceding paragraphs I am not satisfied that the respondent has discharged the onus on it to show that the practice it operated was attributable to factors connected with the comparator's pioneering endeavours in respect of the psychiatric community nursing service in the region. It is accepted by the respondent that the complainant and the comparator perform "like work" in terms of section 7 of the Employment Equality Act, 1998. It is also accepted by the respondent that the comparator is paid the community allowance and the complainant is not. I therefore find, on balance, that the difference in the rates of remuneration paid to the parties is not based on grounds other than gender, permitted by section 19(5) of the Employment Equality Act, 1998 and is therefore contrary to that Act.
6. DECISION
6.1 I find that the difference in the rates of remuneration paid to the complainant and the comparator is not lawful by virtue of section 19(5) of the Employment Equality Act, 1998 and is consequently contrary to that Act. I therefore order, in accordance with section 82 of the Act, that the respondent pay the complainant the community allowance from 17 September, 2001 (when she transferred to the post) until 16 February, 2003 (when she vacated the post).
_______________________________
Vivian Jackson
Equality Officer
16 March, 2004
1Campbell v Minister for Transport (High Court) [1996] ELR 106
2Case C-381/99
3[1998] IEHC 87