FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : HEALTH SERVICE EXECUTIVE (REPRESENTED BY HEALTH SERVICE EXECUTIVE EMPLOYERS AGENCY) - AND - TWENTY SEVEN NAMED COMPLAINANTS (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Under Section 83 of The Employment Equality Act, 1998
BACKGROUND:
2. A Labour Court hearing took place on 13th November. 2007. The following is the Court's Determination:
DETERMINATION:
Introduction
This appeal relates to a claim by 27 named female Directors of Public Health Nursing who are employed by the Health Service Executive for equal pay with 23 named male Directors of Nursing (Mental Health) employed by the same employer. The claim succeeded before the Equality Tribunal and the Health Service Executive appealed to this Court. The claim is grounded on s19 of the Employment Equality Act 1998 (the Act).
In her decision the Equality Officer held that the Complainants and the Comparators were not engaged in like work within the meaning of s 7(1)(b) of the Act. She did, however find that they were engaged in like work within the meaning of s7(1)(c) of the Act.
For ease of reference the parties are referred to in this Determination, as they were at first instance, using the description prescribed by s 77(4) of the Act. Hence the Complainants are referred to as such and the Health Service Executive is referred to as the Respondent.
Background
Mental health services are currently managed within a geographical area by a team comprising of a Hospital Manager, a Clinical Director and a Director of Nursing (Mental Health). Public health nursing services are delivered within a geographical area by a team managed by a Director of Public Health Nursing and Assistant Directors of Public Health Nursing. In brief summary the Director of Nursing (Mental Health) is responsible for the provision of nursing care to patients with a range of mental health conditions either in hospital or in the community. The Directors of Public Health Nursing provide a nursing service in the community in health care centres, schools or to patients at home. Both the Complainants and the Comparators have certain other duties arising under statute.
At 31st January 2004 (the date relied upon by the parties at first instance) there were 33 Directors of Public Health Nursing and 40.5 Directors of Nursing (Mental Health) employed by the Respondent.
All 33 of the Directors of Public Health Nursing were women. Of the 40.5 Directors of Nursing (Mental Health) 6 were women and 34.5 were men. It is accepted by the parties that this gender breakdown is part of a long terms and continuing pattern.
The rates of pay of both grades is determined by collective bargaining conducted by different trade unions.
Issues for consideration
It is clear that the discrimination alleged in this case is indirect since it arises from the different classification of the two posts and the different negotiating units within which pay is negotiated. The rates are, moreover, applicable equally to men and women within each of the professional designations. It is however trite law that where there is a difference in pay as between men and women who are engaged in like work, and that difference prejudices significantly more members of one gender that the other, a prima facie case of discrimination arises. This is the import of the well known decision of the Court of Justice of the European Community inEnderby v Frenchay Health Authority,[1993] ECR 5535 and, in this jurisdiction, of the Judgment of Barron J inFlynn v Primark[1997] ELR 218.
In Enderby the Court of Justice formulated the following principle: -
- There is a prima facie case of sex discrimination where valid statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men. It is for the national court to assess whether the statistics appear to be significant in that they cover enough individuals and do not illustrate purely fortuitous or short-term phenomena.
Where there is a prima facie case of discrimination, Article 119 of the EEC Treaty requires the employer to show that the difference in pay is based on objectively justified factors unrelated to any discrimination on grounds of sex. Workers would be unable to enforce the principle of equal pay before national courts if evidence of a prima facie case did not shift to the employer the onus of showing that the pay differential is not in fact discriminatory.
The fact that the respective rates of pay of two jobs of equal value, one carried out almost exclusively by women and the other predominantly by men, were arrived at by collective bargaining processes which, although carried out by the same parties, were distinct, and conducted separately and without any discriminatory effect within each group, is not sufficient objective justification for the difference in pay between those two jobs.
If the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as sufficient justification for the difference in pay, he could easily circumvent the principle of equal pay by using separate bargaining processes.
In the instant case there is an appreciable difference in pay as between Directors of Public Health Nursing and Directors of Nursing (Mental Health). Further, the role of Director of Public Health Nursing is carried out exclusively by women and the role of Director of Nursing (Mental Health) is carried out predomently by men. The Respondent takes no issue with the validity of the statistics on which this conclusion is posited and accepts that they represent a consistent pattern over many years.
Accordingly, the Respondent correctly conceded that if the Complainants and the Comparators are engaged in like work (which is denied) there is aprima faciepresumption of unlawful indirect discrimination which can only be rebutted by showing objective justification for the impugned difference in pay. The objective justification relied upon by the Respondent at first instance was the different negotiating structures by which the pay of the respective grades was determined. The Respondent further conceded that in light of the decision of the Court of Justice on this point inEnderby(which is contained in the third paragraph recited above) that defence is not sustainable. Since the Respondent was not relying upon any other form of objective justification for the impugned difference in pay it was conceded that the case turns on the question of like work
Like Work.
Section 7(1) of the Act provides that like work exists where: -
- (1) Subject to subsection (2), for the purposes of this Act, in
relation to the work which one person is employed to do, another
person shall be regarded as employed to do like work if—- (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in
relation to the work,
(b) the work performed by one is of a similar nature to that
performed by the other and any differences between the
work performed or the conditions under which it is performed
by each either are of small importance in relation
to the work as a whole or occur with such irregularity as
not to be significant to the work as a whole, or
(c) the work performed by one is equal in value to the work
performed by the other, having regard to such matters as
skill, physical or mental requirements, responsibility and
working conditions.
- (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in
Position of the parties
Summary of the Respondent’s case
The Respondent contends that the Complainants and the Comparators do not perform like work within the meaning of s 7(1) of the Act. It contends that there is a greater amount of responsibility and more onerous working conditions attaching to the role of Director of Nursing (Mental Health) than that of Director of Public Health Nursing.
In particular the Respondent contends that the Comparators, unlike the Complainants, are responsible for the delivery of nursing services both in acute hospitals and in the community and residential facilities. By contrast, it submitted, Directors of Public Health Nursing have responsibility for providing care in the community only. It was submitted that the Comparators have certain responsibilities under the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006 which have no parallel in the case of the Complainants
The Respondent submitted that the Comparators, unlike the Complainants, are responsible for the provision of a service 24 hours per day seven days per week. It contends that the service provided by the Complainants is only provided from 9.00am to 5.00pm Monday to Friday.
It was further submitted that account should be taken of the different levels within the Respondent at which the Comparators and the Complainants report. The Comparators report to the Local Health Manager whereas the Complainants report to the lower level of General Manger.
Summary of the Complainant’s case
The INO contends that the Complainants and the Comparators are engaged in like work with the Comparators in terms of s 7(1)(b) of the Act in that their work is of a similar nature. In the alternative it is contended that the Complainant and Comparators are engaged in work of equal value, and therefore in like work, within the meaning of s7(1)(c ).
It was submitted that the nationally agreed job descriptions for the respective posts indicate that the work performed by the Complainants and the Comparators is similar in many respects and that any differences that exist are not significant and are of small importance to the work as a whole.
It was further submitted that the Complainants are required to possess a higher level of skill than the Comparators. They contend that the Comparators are only required to be registered as a psychiatric nurse whereas the Complainants must be a registered general nurse, a registered midwife and a registered public health nurse. This, it was submitted, requires the Complainants to undertake three years of pre-registration clinical education, a further 18 months of post-registration in midwifery and a further one year full-time university course leading to a Higher Diploma in Public Health Nursing. The nursing registration requirements of the Comparators only necessitate a three-year pre-registration clinical education.
The INO denies that the Complainants work on a 9.00am to 5.00pm Monday to Friday basis. Rather, it contends, the service for which the Complainants are responsible must be delivered on a 24 hour basis over seven days per week. It is further submitted that the Complainants and the Comparators have responsibility for the management of nursing and ancillary staff. The INO also contends that in accordance with national agreements (and a previous Labour Court Recommendation) the Complainants and the Comparators should both report at the same level within the Respondent.
It was submitted that the Complainants have responsibility for various functions under statute. These include functions under the Child Care Act 1991, The Nursing Home Acts 1990 and The Nursing Home Care and Welfare Act 1993. They also have responsibility for ensuring the notification of births under the Birth Notification Act 1907 and for the provision of care services in Schools under the Health Act 1953.
Approach of the Court
In considering the question of like work the Equality Officer decided, with the concurrence of the parties, to proceed on the bases that each of the Complainants and each of the Comparators are engaged in like workinter-se. The Equality Officer then selected three representative Complainants and three representative Comparators for the purpose of comparing their work against the criteria prescribed by s 7(1) of the Act. Again with the concurrence of the parties, the Court adopted the same procedure. Accordingly the Court heard evidence from three Complainants and three Comparators. The Court also examined the agreed job descriptions for the respective positions.
The Evidence
Evidence was given by: -
Ms Geraldine Tabb, Director of Public Health Nursing Waterford,
- Mr Larry Ward, Director of Nursing (Mental Health) Longford / Westmeath.
Ms Virginia Pye, Director of Public Health Nursing, Longford / Westmenth,
Mr Joe McFadden, Director of Nursing Kildare / West Wicklow
Ms Jennifer Bollard, Director of Public Health Nursing, Area 1, Dun Looghaire
Mr Bill Frewen, Director of Nursing (Mental Health), Waterford City and County.
Mr Gerry Raleigh, who is a General Manager with the Respondent for Laois / Offaly, also gave evidence concerning the work performed by Directors of Public Health Nursing and that performed by Directors of Nursing (Mental Health).
Each of the witnesses gave sworn evidence before the Court. The representative Complainants and Comparators gave detailed evidence in relation to the service for which they are responsible and the duties which they are required to perform. The witnesses were each crossed-examined on their evidence and were questioned by members of the Court. The Court is fully satisfied that each of the witnesses gave accurate and reliable evidence from which a clear and comprehensive account of the work and duties of the Complainants and the Comparators overall can be deduced.
Conclusions of the Court
Having considered the evidence adduced the Court is satisfied that the role, functions and duties of the Complainants and the Comparators are accurately described in the job descriptions and job profiles which were put in evidence by the parties.
Form this evidence the Court is satisfied that the work of the Complainants and the Comparators is broadly similar in many important respects. They are both responsible of providing health care to a diverse range of patients.
To that end they each have responsibility for the management of a significant number of nursing and non-nursing staff. They are each responsible for the management of the budget allocated to their service.
Moreover, they each have responsibility for the strategic management of important aspects of the health sector overall and must interact with other health care professionals to ensure the efficient delivery of that service.
There are, however, some differences in the work performed by the Complainants and the Comparators and in the conditions under which they work. These differences relate in the main to the different profile of patients for which each has responsibility. There are also differences arising from the fact that the Comparators have responsibility for patients in acute hospitals and for the admission of those patients often on an involuntary basis. The Complainants have responsibility for a diverse range of services to patients in their homes. This ranges from caring for mothers and infants in cases of domiciliary births to responsibility for the provision of palliative home care to terminally ill patients.
In the Court’s view these differences are not of small importance in relation to the work as a whole nor do they occur with such irregularity as not to be significant to the work as a whole. Accordingly the Court cannot hold that the Complainants and the Comparators are engaged in like work within the meaning of s 7(1)(b) of he Act and it concurs with the Equality Officer’s conclusion to like effect.
The Court must now proceed to consider if the Complainants and the Comparators are engaged in like work against the criteria prescribed by s7(1)(c).
Work of Equal Value.
In considering if the work involved in different jobs is equal in value, and consequently like work for the purpose of s 7(1)(c), the task of the Court is made easier where, as here, there is a significant degree of similarity between the jobs being compared. This was alluded to by Murphy J in giving the judgement of the Supreme Court inO’ Leary v Minister for Transport Energy and Communications[1998] ELR 113. This was an appeal on a point of law from this Court in an equal pay claim. It was accepted that there were significant similarities in the work of the Complainant and her Comparator but not to a sufficient degree as to come within the ambit of s 3(b) of The Anti-Discrimination (Pay) Act 1974 (which corresponded to s 7(1)(b) of the Act). In relation to the task of an Equality Officer in considering if the two jobs are equal in value in such circumstances the Judge said the following: -
- “To liken patently different categories of work one with another by reference to the demands which they make on the skill, effort and responsibility of the workers involved may be a difficult task.
Where, however, as in the present case, there is at the very least a significant degree of similarity between the work performed by the claimants and comparators it should be an easier task to compare the demands which each makes on those engaged in its performance. The possibility of establishing equality of demands or identifying the basis for any inequality must be enhanced in proportion to the degree of similarity between the allegedly different works.”
In this case there are significant similarities between the two jobs. This undoubtedly assisted the Equality Officer in reaching definitive conclusions in her comparison of the work of the Complainants and the Complainant against the criteria prescribed at s 7(1)(c). Those conclusions were carefully set out in her Decision as follows: -
- “5.5 My findings are as follows:
Skill
The complainants asDirectors of Public Health Nursingprovide leadership and direction for community health related services and manage the overall delivery of the service to patients. The performance of their role requires a high level of the following skills:
Management and Leadership, Teamworking, Communication, Interpersonal, Decision Making, Networking/Influencing, Planning, Financial Planning and Management, Negotiation and Analytical.
The comparators asDirectors of Nursing, Mental Health provide leadership and direction for mental health nursing and related services and manage the overall delivery of the service to patients. The performance of their role requires a high level of the following skills:
Management and Leadership, Teamworking, Communication, Interpersonal, Decision Making, Networking/Influencing, Planning, Financial Planning and Management, Negotiation and Analytical.
I find that the demands made on the complainants and comparators in terms of skills are equal.
Physical Requirements
Thecomplainantsand thecomparatorsdid not have any physical demands in their positions over and above what would be normal for a person primarily carrying out office work.
It is sometimes necessary for both the complainants and the comparators to travel to other locations of work within their geographical area and it is also necessary for both to travel generally to various locations within the country for the purposes of meetings.
I find that the demands made on the complainants and comparators in terms of physical requirements are equal.
Mental Requirements:
Thecomplainantsneed to have knowledge of the service being provided and of the Irish Health Service in general and a good knowledge of the legislative framework in which the service is provided and they must work within the confines of the legislation. The complainants may have to attend Court, for example, in relation to proceedings under the Nursing Home legislation but this aspect of the work is an irregular occurrence.
Thecomparatorsneed to have knowledge of the service being provided and of the Irish Health Service in general and a good knowledge of the legislative framework in which the service is provided and they must work within the confines of the legislation. The comparators may have to co-operate and act in an advisory role in relation to Tribunals reviewing involuntary detentions and attend Court as necessary but this aspect of the work is an irregular occurrence.
I find that demands made on both the complainants and comparators in terms of mental requirements are equal.
Responsibility:- Thecomplainants, as Managers of thePublic Health Serviceare responsible for the management, planning and delivery of the public health service to patients with diverse medical conditions at various locations both in terms of the location of staff and the actual delivery of the service within a geographical area. This includes responsibility for the management of a considerable staffing allocation of nursing and non nursing staff, i.e. Homecare Attendants. (Some Directors of Public Health Nursing also have ultimate responsibility for the management of the Home Help Service).
The Directors of Public Health are also responsible for financial matters particularly in terms of monitoring expenditure and staying within their budget allocation.
The complainants have considerable responsibility for the safety of staff in terms of a one to one service in homes being provided.
The comparators asManagers of the Mental Health Service are responsible for the management, planning and delivery of the mental health service to patients with diverse medical conditions at various locations both in terms of the location of staff and the actual delivery of the service within their geographical area. This includes responsibility for the management of a considerable staffing allocation of nursing and ancillary staff (i.e. Domestic Staff and Care Assistants). The Directors of Nursing, Mental Health are also responsible for financial matters particularly in terms of monitoring expenditure and staying within their budget allocation. The comparators have considerable responsibility for the safety of staff in terms of the nature of the service being provided.
I find that the demands made on both the complainants and comparators in terms of responsibility are equal.
Working Conditions:
Thecomplainantswork a 39 hour five day week in an office environment but have to be available to deal with emergency situations on a 24/7 basis.
Thecomparatorswork a 39 hour five day week in an office environment but have to be available to deal with emergency situations on a 24/7 basis. (Some of the Directors also participate in a formal on-call arrangement whereby they are formally on call one week in every six week period but during this time, they are not in attendance at the workplace and may be paid an allowance.)
I find that the demands on both the complainants and comparators in terms of working conditions are equal.
5.6 It is to be noted that there was considerable divergence between the parties in relation to the numbers of staff that some of the Directors of Public Health Nursing were responsible for. In summary, based on the foregoing, I find that the demands made on each of the named complainants in terms of skill, physical or mental requirements, responsibility and working conditions are equal to the demands made on each of the comparators. I, therefore, find that each of the complainants perform 'like work' with each of the named comparators in terms of Section 7(1)(c) of the Employment Equality Acts 1998 and 2004.”
- Thecomplainants, as Managers of thePublic Health Serviceare responsible for the management, planning and delivery of the public health service to patients with diverse medical conditions at various locations both in terms of the location of staff and the actual delivery of the service within a geographical area. This includes responsibility for the management of a considerable staffing allocation of nursing and non nursing staff, i.e. Homecare Attendants. (Some Directors of Public Health Nursing also have ultimate responsibility for the management of the Home Help Service).
There are, however, three further issues in this case which require consideration.
The Respondent placed considerable emphasis on the different reporting relationships of the Complainants and the Comparators. The Complainants report to the General Manager in their area whereas the Comparators report to the Local Health Manager (LHO), which is a higher level of management. The Respondent contends that this is a significant factor which is indicative of the greater degree of responsibility attaching to the post of Director of Nursing (Mental Health). It was submitted that the Equality Officer did not take this into account. For its part the INO disputed that there was a different reporting relationship.
The Court does not accept that a reporting relationship is a matter which should properly be taken into account in measuring the value of two different jobs for the purpose of applying the provision of s7(1)(c) of the Act. Reporting relationships are determined by the employer and are often reflective of the importance which the employer accords to a job. If a reporting relationship were to be regarded as a determinative factor in measuring like work it could easily be used to concealwhat is in reality a discriminatory pay arrangement, thus circumventing the protection of the Act. As was pointed out by Barron J. inC & D Food Ltd. v Cunnion[1997] 1 IR 147, the decision as to what constituted “like work” is for the Court and not the employer. If the employer’s evaluation of the work is incorrect it cannot be relied upon to avoid liability under the Act.
The Respondent also contended that there was a significantly greater liability on the Comparators for call-out after normal working hours and at weekends. The evidence disclosed that the demands of both jobs require that the Comparators and the Comparators are available for work outside of normal working hours. However, the Court is satisfied that the Comparators are required work outside normal working hours somewhat more often that the Complainant.
It is well settled that the law does not require a mathematical exactitude of equality between jobs before they can be regarded as equal in value under s 7(1)(c) of the Act.
Hence, the Court does not consider that the difference in the frequency of call-out as between the Complainants and the Comparators is of sufficient magnitude as to off-set or supplant a finding of like work by the application of the criteria set out in s 7(1)(c) overall.
Finally, the INO say that the Comparators are in receipt of a performance related bonus which is not payable to the Complainants. They say that this was overlooked by the Equality Officer in her award.
A performance related bonus is remuneration for the purpose of Article 141 of the EC Treaty. It follows that any such bonuses paid to the Comparators must be regarded as being encompassed by the Equality Officer’s award of arrears of pay and her prospective award of equal pay.
Determination
For all of the reasons set out herein the Court determines: -
1. The Complainants and the Comparators are engaged in like work within the meaning of s 7(1) of the Act.
2. The pay determination system which resulted in the difference in pay as between the Complainants and the Comparators is indirectly discriminatory on grounds of gender.
3. There is no objective justification for the said difference in pay.
4. The Complainants are entitled to equal pay with the Comparators and to payment of arrears of pay from the dates specified by the Equality Officer.
5. For the purpose of arrear of pay and equal pay the Complainants are entitled to an amount equal to the bonus paid to the Comparators. The Court directs the Respondent to put in place a performance bonus arrangement in line with that applicable to the Comparators.
Since a performance related bonus scheme could not be put in place retrospectively the Court directs that for the purpose of arrears and until such time as the performance scheme is put in place the Complainants be paid an amount equal to the average bonus paid to the Comparators.
The Decision of the Equality Tribunal is affirmed and the appeal herein is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
14th December, 2007______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.