DEC-E2005-008 Full Case Report

1. DISPUTE
   
   1. The dispute concerns a claim on the grounds of gender by Ms. Pauline O’Malley against the Ambulance Service of the Western Health Board that she is entitled to the same rate of remuneration as that paid to Mr. Michael Gaughan, a named comparator in terms of Section 7 of the Employment Equality Act, 1998. The complainant also referred a claim of discriminatory treatment and victimisation but withdrew these claims at the preliminary hearing of this case. She also referred a claim under an Equality Clause and a claim in relation to a Collective Agreement.
      
2. BACKGROUND
   
   1. The complainant commenced employment with the respondent organisation on 12^th June, 1992. She was appointed as an Ambulance Assistant based in Belmullet Ambulance Station at that time and she remained in that position until her resignation on 2 nd November, 2003. The complainant was a trained nurse on entering the employment and she undertook all the training programmes to qualify in the core knowledge and skills in relation to her post. According to the complainant she is entitled to the same remuneration as the named comparator on the basis that they perform ‘like work’ within the meaning of the Employment Equality Act, 1998. The complainant alleges that the named comparator (the holder of a D1 driving licence) received the benchmarking award in July, 2003 whereas she did not receive it because she did not hold this licence. As a result of this the complainant submits that the named male comparator was in receipt of a higher pay to her from July, 2003. The respondent denies the allegation.
   2. Consequently the complainant referred a complaint to the Director of Equality Investigations on 27 th November, 2003 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 25 th June, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A preliminary joint hearing took place on 30 th September, 2004 at which the respondent held that there were ‘grounds other than gender’ in accordance with Section 19(5) of the Employment Equality Act, 1998 for the difference in pay between the complainant and the named male comparator. As a result the respondent submitted its arguments by way of submission to which the complainant responded by way of submission. A further joint hearing took place on 24 th January, 2005.
      
3. SUMMARY OF THE RESPONDENT’S SUBMISSION
   
   
   1. According to the respondent the complainant joined the respondent organisation on 12 th June, 1992 as an ambulance attendant. She was a trained nurse on entering the service and did all the training programmes to qualify in the core knowledge and skills in relation to her post. The complainant did not drive as part of her duties as she did not have a D1 driving licence which is the licence level required to drive an ambulance. At the time there were two grades of staff working on ambulance vehicles namely drivers and attendants. The driver was generally a qualified ambulance person and the attendant had the same qualification but did not have the D1 driving licence. The respondent says that, as part of the 1997 Ambulance Agreement it was held that “Attendants will be retitled as EMT’s on attaining the appropriate driving licence”. While the complainant was aware of this requirement she did not acquire this licence before her resignation and hence remained in the Attendant Grade.
   2. It is the respondent’s submission that drivers who had the D1 licence were retitled as EMT’s after the implementation of the 1997 Agreement. The Department of Health pay scales for ambulance personnel ceased to publish a scale for the attendant category in January, 2002 as the Agreement allowed 3 years for attendants to acquire the D1 licence and the attendant grade was due to have ceased on 20 th April, 2000. The respondent says that the aim of the Agreement was to have a common grade of EMT delivering patient care services in the Ambulance Service. All staff were expected to be able to provide patient care and drive ambulances as part of a multidisciplinary team of health care providers.
   3. With no published pay scales for attendants the respondent states that it sought clarification from the Department of Health. In the absence of this clarification its approach was to take the attendant scale and apply all national pay awards to it. In June, 2004 the respondent decided to assimilate the attendants onto the EMT scale by taking individual attendants at their current salary point and moving them across to the EMT scale and up to the next highest figure. The respondent says that these individual attendants moved to the EMT scale at this time would remain on the point of the scale they moved to until they had acquired their D1 licence. This exercise had been undertaken after the complainant had resigned. According to the respondent benchmarking awards were made to ambulance staff with effect from 1 st December, 2001. This award of 25% was made to the EMT grade but, at the time, there was no facility to pay the award to the attendant grade as it was not mentioned in the approving notice for the payment of benchmarking. Then on 1 st March, 2004 the respondent was notified by the Health Service Employers Agency that it gave approval or supported the goal of paying the attendants the benchmarking awards. The respondent says that this award and back pay was made to the complainant.
   4. The respondent says that the named male comparator joined the Ambulance Service in October, 1972 as a relief driver and he was not qualified in emergency care skills. He had all the appropriate driving licences to drive an ambulance at the time. At that time the second crew member was often a nurse from the hospital staff and it was not uncommon for the driver to have been untrained in emergency care skills. Prior to joining the Ambulance Service the named male comparator had been employed as the boiler man in the hospital for eight years. On joining the Ambulance Service he was put on the driver’s pay scale at the point above his Boiler man’s pay and he retained this relativity over the years and he never progressed up the driver’s scale as he did not qualify in emergency care skills through the National Ambulance Training Course. The named male comparator was then moved to the EMT Scale as were all those staff who were graded as drivers in accordance with the 1997 Agreement. According to the respondent the named male comparator was placed on the 4 th point of the EMT scale and he will not move beyond this point until he has completed the EMT national programme.
   5. The respondent has compared the complainant’s basic pay with that of the named male comparator at the point of the complainant’s last pay cheque on 6 th November, 2003. At that time the complainant received basic pay of € 924.04 while the named male comparator received basic pay of € 878.48. The respondent notes that the complainant received a higher basic pay to the named male comparator and says that the reason for this is that the complainant was on the attendant scale and she was able to move to the maximum of that scale whereas the named male comparator was fixed on the 4 th point of the EMT scale. The respondent notes that this differential continues back for many years and the only point where the complainant was likely to have been paid less is when she was at a point on the attendant’s scale which was lower in value to the 4 th point of the driver’s scale.
   6. In conclusion the respondent states that the complainant was not discriminated against in any way as alleged in her complaint. Her basic pay was higher and the respondent says that it conformed to all agreements with regard to her employment. It is the respondent’s submission that when the Health Board was able to pay her benchmarking it was paid in accordance with the rules. The respondent states that, as an employer, it is committed to treating all employees on an equal basis regardless of gender.
      
4. SUMMARY OF THE COMPLAINANT’S SUBMISSION
   
   
   1. According to the complainant her main grievance is that of unequal pay for work of equal value. The complainant alleges that the reason for her non-entitlement to the benchmarking pay award and back pay was that she did not have a D1 driving licence and could not be classified as an EMT. It is the complainant’s submission that it was her understanding of the 1997 Ambulance Agreement that untrained drivers i.e. ambulance persons with D1 driving licences but no training in ambulance aid or patient care, must have at least some basic training in ambulance aid to qualify as EMTs and benchmarking pay increases. The complainant states that when she entered the Ambulance Service there was no requirement on her to have a D1 licence. She contends that new stipulations were applied to Ambulance Attendants, all of whom were female whereas they were not imposed on drivers all of whom were male. The complainant further notes that had she acquired a D1 driving licence it would have been of no benefit to her as her driver colleague could not interchange with her role as attendant, being untrained in patient care and yet they would both be classed as EMTs.
   2. The complainant states that her grievance has nothing to do with the named male comparator personally but with the apparently subjective choice of those deemed to be classified as EMTs and thereby eligible for all benchmarking awards. The complainant accepts that her basic pay was always higher than the named male comparator’s but contends that with future pay increments it would soon be less.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   
   1. The issue for decision in this claim is whether or not the complainant has been discriminated against by the respondent in relation to pay. In making my decision I have taken into account all of the information, both written and oral, made to me by the parties.
   2. At the hearing of this claim the complainant stated that she was not seeking equal pay with the named male comparator because at the time he was earning a lower salary to her. She stated that the issue of concern to her was the fact that the named male comparator received the benchmarking award of 25% whereas she did not. It was the complainant’s view that the benchmarking report was a collective agreement which she alleges was discriminatory. It was the complainant’s further contention that she has a claim under an equality clause because she was not treated equally with the named male comparator.
   3. At the hearing of this claim the respondent stated that the complainant, subsequent to her bringing this claim, had been paid the 25% benchmarking award and any back pay that was due. According to the respondent the reason the complainant was not paid the benchmarking award at the same time as the named male comparator was because the benchmarking report had recommended a 25% award for the EMT grade but had not made any reference to the attendants who had not yet transferred to the EMT grade. The respondent stated that when the position of these staff still in the attendant grade (including the complainant) was clarified it paid the benchmarking award and any back pay that was appropriate. The respondent denied that it discriminated against the complainant as alleged.
   4. A claim for equal pay occurs when a complainant alleges that he/she is performing ‘like work’ with a named comparator yet is receiving a lower rate of pay to the named comparator and the reason for this difference in pay is related to one of the seven grounds under the Employment Equality Act, 1998, in this case gender. This, however, is not the case in this claim as the complainant was being paid more than the named male comparator and her salary remained higher than the named male comparator’s when he received the benchmarking award and she did not. The reason for the delay in paying the benchmarking award to the complainant was not related to her gender but resulted from a lack of clarification in the benchmarking report as to the position of attendants who had not yet transferred to the EMT grade. In conclusion, therefore, I am satisfied that the complainant has failed to establish a prima facie case of discrimination in relation to equal pay.
      
6. DECISION
   
   1. In view of the foregoing I find that Ms. Pauline O’Malley in her claim against the Ambulance Service of the Western Health Board failed to establish a prima faciecase of discrimination in relation to equal pay.

Gerardine Coyle,
Equality Officer,
9 th February, 2005

²High Court – Minister for Industry and Commerce v Campbell [1996] CLR 106,
³Labour Court – Southern Health Board v Mitchell – DEE011,
⁴Labour Court – Gleeson v Rotunda Hospital – DEE003,
⁵Labour Court – Dublin Institute of Technology v A Worker – DEE994,
⁶High Court – Davies v Dublin Institute of Technology [2000] Unreported,
⁷Equality Officer Decision – DEC-E2002-047,
⁸Labour Court Determination – DEE986,
⁹Labour Court Determination – DEE033,
¹⁰High Court [1999] CLR 1,
¹¹Labout Court Determination – Southern Health Board (Cork University Hospital) and Dr. Teresa Mitchell – DEE011,
¹²Labout Court Determination – DEE033 dated 25th April, 2003