Mc Goldrick
-v-
The Health Service Executive (Northern Area)
1. CLAIM
1.1 The case concerns a claim by Mr. Micheal Mc Goldrick that the Health Service Executive (Northern Area) directly and indirectly discriminated against him on the age and gender grounds in terms of section 6(2)(a) and (f) of the Employment Equality Acts 1998 and 2004 contrary to sections 19 and 29 of the Acts.
2. BACKGROUND
2.1 The complainant submits that he is paid eight hours for working a morning and afternoon session as a Pharmacist in the Addiction Services of the Health Service Executive. He submits that a female comparator is paid five hours for working a morning session and four hours for working an afternoon session. He submits that the difference in payment is based on gender and age.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 2 September 2004. On 21 February 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, 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 from the complainant on 3 March 2006 and 31 March 2006 and from the respondent on 30 March 2006. A joint hearing of the claim was held on 29 June 2006.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submits that he is employed under a contract of service as a sessional pharmacist by the Addiction Services. The Addiction Services were set up by the EHB about ten years ago. The dispensing hours in the Drug Treatment Centres then were 9-12pm and 2-4pm. Almost all pharmacists were employed as sessional pharmacists. For payment purposes, a session comprised dispensing hours plus one hour before and one hour after dispensing hours. Therefore, a morning session was paid as five hours and an afternoon session as four hours. In order to get paid, sessional pharmacists must submit a claim form which itemises sessions into morning, afternoon, evening and week-end. The situation has remained unchanged in the EHB/HSE East Coast Area and EHB/HSE South Western Area where all sessional pharmacists bar the two pharmacy managers are paid as above.
3.2 Around 1997, in the EHB Addiction Services North side (now the HSE - Northern Area), the dispensing hours in the Drug Treatment Centres for the afternoon were changed to 2-3.30pm. Additional time between 3.30-4.00pm was allotted to allow for other duties. The complainant submits that when he was commenced employment with the HSE-Northern Area, he was informed he would be paid 4 hours for any morning session worked, 4 hours for any afternoon session worked and 4 hours for an evening session worked (with the exception of working on the Mobile Clinic where there is no lunch break and an additional 1 hour was paid).
3.2 The complainant subsequently discovered that five females are paid 5 hours for working a morning session. He submits that he is therefore, claiming equal pay with the five named comparators for a morning session.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent contends that there are grounds other than gender and age for the difference in pay with the named comparators. The Health Service Executive Dublin /North East agreement with sessional pharmacists is that sessional pharmacists can claim a maximum of eight hours where a morning and afternoon session is provided. Where a morning session only is provided, this attracts a remuneration of 5 hours and where an afternoon session only is provided; it attracts a remuneration of 4 hours. The complainant is paid in accordance with this arrangement. The practice was re-confirmed to IMPACT trade union, representing sessional pharmacists following a formal meeting on the issue in February 2005. The payment arrangements are based on custom and practice.
4.2 It has always been verbally communicated to sessional pharmacists commencing employment with the Northern Area Health Board that they would be paid in this manner. This is reinforced by the majority of our sessional pharmacists who claim remuneration according to the agreed practice.
5. SUMMARY OF THE COMPLAINANT'S ADDITIONAL SUBMISSION
5.1 The complainant submits that it was only in 2004 when he first outlined his grievance and requested the HSE to pay him 5 hours for a morning session and 4 hours for an afternoon session that they first stated in writing that there was a single payment of 8 hours for a morning and afternoon session worked on the same day.
5.2 The respondent has not addressed the reason why prior to the complainant's claim, they paid Ms. BP, the comparator named in his referral form five hours for a morning session and four hours for an afternoon session.
6. CONCLUSIONS OF THE EQUALITY OFFICER
6.1 In this case, the complainant alleges that the respondent directly and indirectly discriminated against him on the gender and age grounds in relation to his pay. I will therefore consider whether the respondent directly discriminated against the complainant on the gender and age grounds in terms of section 6(2)(a) and (f) of the Employment Equality Acts 1998 and 2004 in contravention of sections 19(1) and 29(1) of the Acts in relation to his pay. I must also consider whether the respondent indirectly discriminated against the complainant in terms of section 19(4) and 29(4) of the Acts in relation to his pay. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Direct discrimination on the age ground
6.2 Section 6(1) of the Employment Equality Act, 1998 and 2004 provides that:
"..... discrimination shall be taken to occur where-
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as "the discriminatory grounds"), ......."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act referred to as the "gender ground"),
(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground"),
Caselaw on establishing a prima facie case of direct discrimination
6.3 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the age ground. The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (1) considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
6.4 Subsequently, the Labour Court stated in relation to the burden of proof in a discriminatory dismissal case on the age ground:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed." (2)
More recently, the Labour Court stated in a case concerning discrimination on the age ground in relation to access to employment:
"It is accepted that if the complainants make out a prima facie case of discrimination, the burden of proving the absence of discrimination shifts to the respondent. The appropriate test for determining if that burden has shifted is that formulated by this Court in Teresa Mitchell v Southern Health Board [2001] ELR 201. This test places the initial burden on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent." (3)
Direct discrimination
6.5 The Labour Court stated in the case of Superquinn -v- Barbara Freeman (4) that "The existence of a difference on the grounds of age, marital status or family status between the two candidates does not of itself establish a prima facie case of discrimination. The difference in age of three years, the complainant being 31 years old and the successful candidate being 28 years old, is not in the Court's view significant enough to establish a presumption of discrimination, in the absence of any other facts. While the application form for the position required the candidates age, which of itself is prohibited by the Employment Equality Act, 1998, no facts were presented by the complainant to substantiate the allegation that the company had treated her less favourably due to her age."
6.6 When the complainant referred his claim on 2 September 2004, he named one comparator, Ms. P. In his submission received by the Tribunal on 3 March 2006, he named another three comparators who he claimed were recipients of five hours pay for working a morning session only. However, as it is not possible to add or change comparators during a claim , I am investigating this claim in relation to the comparator named on the referral form only. In any case, the respondent provided details of the hours claimed and paid to the 18 pharmacists who worked in the Addiction Services for the period January to September 2004. At the time of the referral of the complaint to the Tribunal, ten pharmacists were male and eight were female and the ages of the males ranged from 26 to 69. The ages of the female pharmacists ranged from 30 to 68 years. The respondent accepted that there was no dispute in relation to like work between the pharmacists. The data provided shows that on four occasions between January 2004 and September 2004 (prior to the referral of the complainant's claim), the complainant claimed and was paid for nine hours when working in the clinic. According to the data, the named comparator, Ms. P (aged 54) during that period mainly claimed nine hours and was paid for nine hours when working in the clinic. However, on 9 occasions (each occasion may relate to a number of dates) during that period, she claimed nine hours and was paid only for eight hours whilst working in the clinic. On another ten occasions, she claimed 8 hours for working in the clinic and was paid for eight hours.
6.7 Another female, Female 1 (aged 58) on eight occasions claimed nine hours for working in the clinic and was only paid for eight hours. On another six occasions, she claimed for eight hours and was paid eight hours and on one occasion, she claimed nine hours for working in the clinic and was paid for nine hours. Female 4 (aged 49 years) on five occasions during the period January to September 2004 claimed nine hours for working in the clinic and was paid for nine hours. On one occasion, she claimed nine hours and was paid for eight hours. On twenty occasions, she claimed for eight hours and was paid for eight hours. The complainant stated in a submission to the Tribunal received on 11 July 2006 that "I accept from the Health Board information supplied that Female 1 .... and Female 4 .... were paid 8 hours per day." Female 2 (aged 46) mainly claimed eight hours for working in the clinic and was paid for eight hours and on one occasion, she claimed nine hours for working on the clinic and was paid for eight hours. The complainant submitted that the information supplied for Female 2 is vague as only two precise dates of working and receiving eight hours pay per day are supplied and he submitted that from his records, that female did not work any full days in that period contrary to the information supplied by the respondent. Female 3 (aged 30) during that period only worked week-ends, Female 5 (aged 30) did not work any hours during the period in question, Female 6 (aged 55) did not work on a regular basis and worked mornings only or afternoons only and Female 8 (aged 68) did not work any full days during the period in question and only works mornings.
6.8 The respondent submits that the management position is that sessional staff who work mornings and afternoons on the same day should be paid nine hours when they work on the mobile bus service, but paid eight hours when working clinics. It also submitted that in the January-August 2004 period, claims to be paid nine hours for full days working in clinics were submitted by some pharmacists. Some of the claims were reduced by management/administration to eight hours and processed for payment at eight hours. It submitted that some were not altered and processed for payment at nine hours in error. It can be seen from the preceding paragraphs that a number of females including the named comparator and all of whom were different ages, claimed and were paid for working clinics in an inconsistent manner. The complainant accepts the information supplied by the Health Board in respect of Female 1 and Female 4. That data shows that on a number of occasions, both females claimed eight hours for working in the clinic and were paid for eight hours. The data also shows that Female 1 on eight occasions claimed nine hours and was only paid for eight hours. It also shows that Female 4 on one occasion claimed nine hours for working in the clinic and was paid for eight. Female 1 on one occasion was paid nine hours for working on the clinic and Female 4 was also paid nine hours on a number of occasions. I also note that the complainant refers in his submission to a female who was paid less than him (three hours) for working an afternoon session. It appears from the data provided by the respondent and which has been accepted by the complainant that a number of females who were older than him (Female 1 aged 58 and Female 4 aged 49 in September 2004) were paid in a like manner to him, i.e. paid 8 hours for working a full day in the clinic.
6.9 The respondent submitted that payments of nine hours for working a full day were erroneous and that since the claim, everybody is paid eight hours for working a full day but that on occasion, a claim may still go through and be processed for payment at the rate of nine hours where it is unsigned. At the hearing, the respondent submitted that some of the complainant's claims for nine hours in respect of a full day are still getting through and being paid. The complainant submitted that this may be simply due to short staffing if the Pharmacy Manager is not available to sign off on the forms. It appears from the data provided by the respondent relating to the period January 2004 to September 2004 which was prior to the complainant's claim, payment was sometimes claimed by pharmacists including some of the females at the rate of eight hours for working a full day on the clinic and was paid at eight hours. It also appears that some people (including the complainant) on occasion claimed nine hours and were paid for nine hours. The haphazard rate of payment and lack of clarification on the issue were unfair to pharmacists in general. I consider that the haphazard rate of payment is not helped by the manner in which the claim form is constructed. I note that on 11 February 2005, the respondent wrote to IMPACT in relation to the named female comparator and refused to concede a claim for payment of nine hours for a full day. The respondent reiterated that payment for a morning session only attracts a five hour rate of remuneration and payment for a full day attracts a rate of eight hours. In the circumstances and taking into account all of the evidence, I find that the complainant has failed to establish a prima facie case of direct discrimination on the gender and age grounds.
Indirect discrimination
6.10 Parts III and IV of the Employment Equality Acts 1998 and 2004, deal, inter alia, with indirect discrimination. Part III contains specific provisions relating to equality between males and females (the gender ground) and Part IV contains specific provisions relating to equality between other persons. Section 28 of the Acts provides that C and D represent two persons who differ in relation to any of the other eight grounds. For the purposes of that part of the Act, a comparison may be made between two persons who differ in relation to their marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. In relation to the age ground, this means that a comparison may be made between two persons of different ages. Section 29(4) provides that the provisions of section 19(4) shall apply in relation to indirect discrimination on all of the non gender grounds. Section 19(4) which deals with indirect discrimination on the gender ground provides:
(a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender [marital status, family status etc.] at a particular disadvantage in respect of remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.
6.11 The complainant submitted that the provision in relation to paying five hours for a morning session puts him at a disadvantage in relation to his pay when he works full days. The complainant was thirty two years old when he referred the complaint to the Tribunal. He submitted at the hearing that those treated more favourably are in the mid to late 40's/50 plus age group. I note that at the time of the referral in September 2004, 20% of male pharmacists were over 45 years old and 75% of female pharmacists were over 45 years old. He submitted that he generally works a full day, however, he sometimes works a half day depending on his own availability and the requirements of the addiction services. He was told on the commencement of his employment that he should claim four hours for a morning session and four hours for an afternoon session. However, that statement appears to be correct only in the event that the complainant works a full day in which case he claims eight hours. He submitted that since lodging his claim, he now claims five hours if he works a morning session and is paid five hours.
6.12 As referred to at paragraph 6.6 above, at the time that the claim was referred in September 2004, there were eighteen sessional pharmacists, ten of whom were men and eight were women. As referred to also at paragraph 6.7 above, Female 3 (aged 30) during the period January to September 2004 worked only at week-ends, Female 5 (aged 30) did not work any hours during the period in question, Female 6 (aged 55) did not work on a regular basis and worked mornings only or afternoons only and Female 8 (aged 68) did not work any full days during the period in question and only works mornings. It is the case, therefore that at that time, only two of the eight females worked mornings or afternoons only. During the period January to September 2004, four of the males submitted claim forms for working full days.
6.13 The respondent submitted that the practice of paying five hours for a morning session only is based on custom and practice. At the hearing, the respondent submitted that it was not the case that the majority of females work mainly mornings only and that males work full time and it was also not the case that work patterns were dictated by age. The respondent's statement on these issues was not disputed by the complainant and evidence was not presented by the complainant that a majority of older females work mornings only and that the younger males mainly work full days. The complainant has not shown that paying five hours for a morning session puts younger males at a disadvantage in respect of their pay compared with older females. I therefore find that the complainant has failed to establish a prima facie case of indirect discrimination in relation to his pay on the gender and age grounds.
7. DECISION
7.1 On the basis of the foregoing, I find that the respondent did not directly discriminate against the complainant on the gender and age grounds in terms of section 6(2)(a) and (f) of the Employment Equality Acts 1998 and 2004 contrary to the provisions of section 19(1) and 29(1) of the Act in relation to his pay. I also find that the respondent did not indirectly discriminate against the complainant on the gender and age grounds in terms of section 19(4) and 29(4) of the Acts in relation to his pay.
__________________
Mary Rogerson
Equality Officer
2 August 2006
notes
(1) DEE011 15 February 2001
(2) Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003
(3) Portroe Stevedores v. Nevins, Murphy, Flood EDA051 11 February 2005
(4) AEE/02/8 Determination No. 0211
(5) The State (Polymark Ireland Ltd) v The Labour Court and ITGWU, HC 07/11/86