1. CLAIM
1.1 The case concerns a claim by Ms. Tara O' Donnell, Jacqueline Stewart, Joanne Mc Teigue and Margaret Mc Kenna that the Health Service Executive (North West Area) indirectly discriminated against them on the grounds of gender, marital status and family status in terms of section 6(2)(a), (b) and (c) of the Employment Equality Act, 1998 and in contravention of sections 8, 22 and 31 of the Act in relation to their conditions of employment.
2. BACKGROUND
2.1 The complainants submit that the respondent insists that they work a roster which requires them to work seven consecutive days in a row and on occasions 13 out of 16 days with the result that the complainants are away from home for 13-13.5 hours per day for continuous periods. The nurses claim that the roster impacts more heavily on them as females than on nurses of the opposite sex and also impacts more heavily on them as mothers than on nurses who do not have family commitments. The respondent accepts that the roster may include long tours of duty. It submits that discussions have been ongoing with the PNA and SIPTU regarding implementing new working arrangements since 2002 and that it is quite prepared to change the rostering arrangements.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Tribunal on 11 December 2003. On 30 May 2005, 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. A submission was received from the complainant on 12 July 2005. A submission was received from the respondent on 27 September 2005. A joint hearing of the claim was held on 15 March 2006. A supplementary submission was received from the complainants' representative on 27 April 2006. The respondent indicated by letter dated 9 May 2006 that it did not wish to respond to the complainants' supplementary submission.
3. SUMMARY OF THE COMPLAINANTS' SUBMISSION
3.1 The complainants submit that the respondent insists that they work a roster which requires them to work seven consecutive days in a row and on occasions 13 out of 16 days with the result that the complainants are away from home for 13-13.5 hours per day for continuous periods. They claim that, as mothers, the roster impacts negatively on them. The complainants' representative (The Psychiatric Nurses' Association of Ireland) submits that it first brought the concerns regarding the roster to the attention of the respondent on 29 May 2003 but that it has been unsuccessful in implementing an alternative roster.
3.2 On 5 November 2004, the PNA wrote again to the CMO of the respondent and summarised the grievances of the employees as follows:
- The roster requires nurses to work 12 or 13 days out of 15 days from 8am to 7.10pm or 8.30am to 8pm within every six weeks roster period;
- Female nurses with children have to leave home before their children are up and return after they have gone to bed, day after day;
- The breast feeding mothers have to stop as they could not express milk for more than one or two days at a time without access to their babies on the 2nd or 3rd day;
- Pregnant nurses have to work 6/7 days in a row (8am to 7.10pm or 8.30am to 8pm) and 13 such days out of 15 days with the result that many of them are forced out on sick leave having struggled through exhaustion, back pain etc;
- Some of the nurses (complainants) are forced to opt for loss making rosters, flexitime or parental leave as a means of breaking up their attendance pattern. This resulted in loss of earnings, reduced ability to save towards home purchase, reduced ability to fund current expenses or save towards their children's future education;
- These nurses accrue reduced pensionable service which may impact against them in the future;
- The stress caused by the roster results in feelings of anxiety and guilt for the nurses involved and undermines the essential bonding periods in the child/mother relationship;
- The nurses experienced great difficulty in sourcing crèche or child minding faculties to look after their children when working the roster.
3.3 The Labour Court in ED0212 Inoue v NBK Design Ltd accepted that "It is still the reality in modern society that mothers are more likely to fulfil the role (Primary carer of Child) than are fathers." The complainants believe that the requirements of the roster bear significantly more heavily on them than on nurses of the opposite sex and that the roster also bears more heavily on them than on nurses who do not have family commitments. The roster is not objectively justified by reference to the three tiered test identified by the ECJ in Bilka that it:
(a) corresponds to a real need on the part of the undertaking;
(b) is appropriate with a view to achieving the objective pursued;
(c) is necessary to that end.
3.4 The PNA submits that the complainants' roster is in breach of their right to equality as follows:
The respondent is in breach of section 22 of the Employment Equality Act, 1998 as amended by section 31 of the 2004 Act by requiring the complainants to comply with a term of employment, i.e. the roster which is substantially more difficult for them as females and mothers to comply with than for other male colleagues. The proportion of employees who are so disadvantaged is substantially higher in the case of those of the same sex as the complainants.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The complainants who are the subject of this claim are employed in the Sligo Mental Health Services as staff nurses and are represented by the PNA. They operate a 6 week roster which requires the nurses to work in blocks of 2 days, 4 days, or 6/7 days over the 6 week period. The roster was agreed with the trade union SIPTU prior to the PNA being organised in the service. There are approximately 64 staff nurses employed in the facility, 29 of whom are male and 36 are female.
4.2 The respondent accepts that the roster may include long tours of duty. Typically over the 6 week rostered period, the nurses work 24 days and have 18 days off as compared with the more typical arrangement whereby a nurse would work 30 days and have 12 days off in a 6 week period. Nurses who operate this roster do not work a greater number of hours than employees working more typical rosters, ie. They work an average of 39 hours per week over the rostered period, albeit in more congested tours of duty than would be typically worked in the health service. The employees' free time is not diminished due to working the roster and therefore, they have the same quantum of time available for childcare and other family commitments.
4.3 The employer is quite prepared to change the rostering arrangements. For this purpose, the Director of Nursing issued a questionnaire to all staff members in July 2002 to ascertain their feelings on introducing a revised roster for the facility. SIPTU which also represents nurses in the service advised its members not to complete the questionnaire. The Director of Nursing then devised an alternative roster in October 2002 which would ensure that nursing staff would not be subjected to long tours of duty. SIPTU responded by threatening industrial action if management went ahead with the new working arrangements. Implementing a revised roster would be dependant on the co-operation of all nurses employed in the facility. Discussions have been ongoing with SIPTU and the PNA since 2002 about implementing these working arrangements. This has involved attendance at arbitration, conciliation and the LRC by some of the parties to the issue.
4.4 In January 2005, the Director of Nursing engaged the services of a rostering company to design another rostering schedule which would be acceptable to all the parties in the issue. The work is on-going and is dependant on the co-operation of all parties to ensure its successful implementation. The employer operates a system of flexible working hours whereby staff may choose to reduce their working hours allowing them to spend more time with their families if they choose to do so.
4.5 The employer is an equal opportunities employer. It is conscious of its responsibilities to provide a working environment and working arrangements which do not discriminate against staff on either the gender or family status grounds. It is prepared to change the current rostering system but such change is dependant upon co-operation from the nurses and their representatives. Based on the foregoing, the employer contends that it did not discriminate against the complainants contrary to the provision of the Employment Equality Acts 1998-2004.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainants allege that the respondent indirectly discriminated against them on the gender, marital status and family status grounds in relation to their conditions of employment. I must consider whether the respondent indirectly discriminated against the complainants on the gender, marital status and family status grounds in terms of section 6(2)(a), (b) and (c) of the Employment Equality Act 1998-2004 within the meaning of sections 22 and 31 of the Act and in contravention of section 8 of the Act. 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.
Discrimination on the various grounds
5.2 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
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"),
(b) that they are of different marital status (in this Act referred to as "the marital status ground"),
(c) that one has family status and the other does not (in this Act referred to as "the family status ground"),
Indirect discrimination
5.3 Parts III and IV of the Employment Equality Act 1998, deal, inter alia, with indirect discrimination. For the purposes of the Act, a comparison may be made between two persons who differ in relation to their gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. Section 22 of the Act provides that where a provision applies to both males and females and is such that the proportion of persons who are disadvantaged by the provision is substantially higher in the case of females rather than the males and is not appropriate and necessary and cannot be justified by objective factors unrelated to the female's sex then it constitutes indirect discrimination on the gender ground. Section 31 of the Act prohibits indirect discrimination in relation to the other grounds and provides that where a provision relating to employment applies to all employees or prospective employees (or a particular class of employees or prospective employees) and operates to the disadvantage of one person compared to another and in practice can be complied with by a substantially smaller proportion of employees or prospective employees of a particular category relative to persons of a different marital status, family status, disability, age etc. and cannot be justified as being reasonable in all the circumstances, it shall be regarded as indirect discrimination contrary to section 8 of the Act on whichever of the grounds is relevant.
5.4 The Employment Equality, 1998 as amended by the 2004 Act with effect from 19 July 2004 provides at section 31 that the provisions of section 22 shall apply in relation to indirect discrimination on all of the non gender grounds. Section 22(1) 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 any matter other than remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to ..... unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."
The claims of indirect discrimination in this case which were referred to this office on 11 December 2003 were stated to be ongoing at that time and continuing at the date of the hearing of the claim in March 2006. As the alleged discrimination was ongoing after 19 July 2004 and the amendments made to the relevant provisions on indirect discrimination are not substantially different and do not diminish or interfere with vested rights or impose new obligations in relation to past events, I shall consider the issue in terms of sections 22 and 31 of the 1998 Act as amended.
Establishing a prima facie case of discrimination
5.5 In the Labour Court case of NBK Designs Ltd v. Marie Inoue (1) , the Court considered in that case that the disadvantage alleged arose "not from the person's gender per se, but from the combination of their gender, family status and/or their marital status." The Court noted that the "question of whether an expert tribunal (such as the Court) can reach conclusions by relying on the knowledge and experience of its members, without any evidence being adduced on the point," had not been previously considered by the Court but had been considered by the UK and Northern Ireland Courts. The Labour Court quoted from Price v. Civil Service Commission (2) , Perera v. Civil Service Commission (3), (which was subsequently adopted in Clymo v. Wainsword London Borough Council (4) ) and Briggs v. North Eastern Education and Library Board (5).
The Labour Court referred to an extract from the Perera case which was subsequently adopted in Clymo v Wainsword London Borough Council [1989] IRLR 241 which reads as follows:
"On the one hand, the burden is on the complainant to prove his case and, viewed in isolation, the statistics produced do not prove it. On the other hand it is most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved. The time and expense involved in preparing and proving statistical evidence can be enormous, as experience in the United States has demonstrated. It is not good policy to require such evidence to be put forward unless it is clear that there is an issue as to whether the requirements of Section 1(1)(b) are satisfied."
5.6 The Labour Court went on to hold in the Inoue case:
"It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of this Court by drawing on their own knowledge and experience.
Whilst there are many cases in which the unequal effect of a provision can be seriously put in issue and the true position can only be established by elaborate statistical evidence, the Court is satisfied that this is not such a case."
In that case, the Labour Court stated "the complainant was unable to work full-time, not because she was a woman per se, but because she is the mother of a school going child and the primary carer of that child." It accepted that it is the reality in modern society that mothers are more likely to fulfil the role of primary carer of children than are fathers. In addition to the combined impact of gender and family status on being able to work full time, the Court recognised that marital status may also be an issue. It stated "..., as a general proposition, women who have children and are single, separated, or divorced find it more difficult to work full-time than fathers who are single, separated or divorced or men who are not parents." In this case, I consider that the roster which required the complainants to work as part of that roster six/seven consecutive days in a row and on occasions thirteen out of sixteen days impacted more heavily on them as females and as primary carers. I find that it is prima facie indirectly discriminatory on the gender and family status grounds.
Justification for the practice
5.7 The complainants sought a roster which meant they were not working seven days in a row or thirteen out of fifteen days. They sought a roster which would allow sufficient breaks to fulfil the requirements of their lives and they proposed a roster in 2001/2002 which would have meant the nurses would not have to work more than four days in a row. They submitted that they were willing to consider any roster whereby they would not have to work more than four days in a row. The Psychiatric Nurses' Association of Ireland submitted that it was happy with the alternative roster presented by the Director of Nursing in October 2002, however, SIPTU who represented a number of other nurses in the service objected to that roster.
5.8 A difficulty arises for the respondent in that the Nurses in its employment are represented by both the Psychiatric Nurses Association of Ireland and SIPTU. It appears that the roster of choice for the members represented by the two bodies differ with the SIPTU represented members preferring to work according to the existing roster. The respondent submitted, inter alia, in October 2003 when the matter went to Arbitration that the "archaic roster fails to meet the requirements of the millennium and therefore, should be replaced by a family friendly and person orientated roster." The respondent submits that it cannot unilaterally impose a new roster and submitted that when it sought to do so in October 2002, SIPTU responded by threatening industrial action. I note that in a letter from SIPTU dated 15 October 2002 to the Director of Nursing, it states ".... I must point out that the present roster has been in operation in this work setting for at least the last eighty years and that as recently as four years ago our members saw fit to insist that a clause be included in a SIPTU/NWHB Agreement that the present roster would be retained for the acute units of the Service, an agreement that is still in place at this time." At the hearing, it was submitted by the PNA that a few days earlier, the respondent proposed a new roster to accommodate the needs of the complainants. Two rosters would therefore operate in the respondent organisation, i.e. the existing roster and a new one to accommodate the nurses represented by the PNA.
5.9 The European Court of Justice has stated in relation to objective justification in a case concerning gender discrimination:
"It is necessary in that regard to ascertain, in the light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether such aims appear to be unrelated to any discrimination based on sex and whether those provisions as a means to the achievement of certain aims, are capable of advancing those aims (see, in that regard, Case C-167/97 Seymour- Smith and Perez [1999] ECR I-623, paragraph 72)." (6)
A finding of indirect discrimination only arises under the Employment Equality Act, 1998 - 2004 if the provision cannot be objectively justified in terms of paragraph (b) of section 22(1). The onus of establishing objective justification rests with the respondent. I must now consider whether the respondent can rebut the complainants' claim of discrimination and show that the operation of the roster is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary in accordance with section 22.
5.10 In the case of Bus Eireann v. Mc Loughlin (7) which concerned age discrimination, the Labour Court stated:
"On the evidence presented to it, the Court is satisfied that the necessity to maintain industrial relations harmony does constitute a legitimate aim on the part of the appellants. This does not mean that a collective agreement can be relied on per se as objective justification for a discriminatory practice. If however the objectives underlying the agreement do constitute a legitimate aim then the impugned term in the agreement may be allowed to stand."
The Court continued:
"The Court is satisfied that the means chosen in the particular circumstances of this case were appropriate. The main objectives were to promote industrial relations harmony and to ensure that relationships between their various employees were maintained on an even footing."
5.11 In this case, I must consider whether the continuation of the existing roster is justified by a legitimate aim. In accordance with the Bus Eireann case referred to above, I am satisfied that the necessity to maintain industrial relations harmony constituted a legitimate aim on the part of the respondent. I must now consider whether the means of achieving the aim of maintaining industrial relations harmony were appropriate and necessary. I must therefore consider whether allowing the existing roster to continue was the only appropriate and necessary means of achieving industrial relations harmony. As referred to at paragraph 5.9 above, a few days prior to the hearing, the respondent proposed the continuation of the existing roster alongside the introduction of a new roster to accommodate both the needs of the complainants and the nurses represented by SIPTU. At the hearing, the complainants' representative considered that the respondent could have taken this course of action at any stage since 2003 and no explanation was provided by the respondent as to why it did not do so. It appears, therefore, that maintaining the existing roster was not the only appropriate and necessary means of maintaining industrial relations harmony. In the circumstances, I find that maintaining the existing roster was not objectively justified and the roster indirectly discriminated against the complainants on the gender and family status grounds.
5.12 The complainants claim that the provision also discriminated against them on the marital status ground. Section 31(5) of the Act, as amended provides that if an employer is regarded as indirectly discriminating against an individual on the marital status ground or the family status ground and is also regarded as discriminating on the gender ground, the employer shall be regarded as indirectly discriminating on the gender ground only. I note that the Labour Court in the Inoue case considered the similar provisions of section 22(4) and 31(5) of the 1998 Act and found that the claim fell within the scope of the gender ground only. Similarly, in this case, I find that this claim falls within the scope of the gender ground only
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent indirectly discriminated against the complainants on the gender ground in terms of section 6(2)(a) of the Employment Equality Acts 1998 -2004 contrary to section 22 of the Act in relation to their conditions of employment.
6.2 I hereby order that the respondent:
(i) immediately implement a new roster which does not indirectly discriminate against the complainants on the gender ground (if it has not already implemented one on foot of its proposal in March 2006);
(ii) pay to the complainants the sum of €5,000.00 compensation each for the effects of the acts of discrimination (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income and is not therefore subject to tax);
__________________
Mary Rogerson
Equality Officer
25 May 2006
notes
(1) ED/02/34 Determination No. 0212 25 November 2002
(2) [1977] IRLR 291
(3) [1982] IRLR 147
(4) [1989] IRLR 241
(5) [1990] IRLR 181t6
(6) Helga Kutz-Bauer v. Freie und Hansestadt Hamburg Case C-187/00 ECR 2003 Page I-02741 para 51
(7) Determination No. EDA0516 21 November 2005