FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83; EMPLOYMENT EQUALITY ACT; 1998 PARTIES : HEALTH SERVICES EXECUTIVE - AND - MICHEAL MC GOLDRICK DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Under Section 83 Of The Employment Equality Act, 1998 Dec-E2006-032
BACKGROUND:
2. A Labour Court hearing took place on the 6th March, 2007. The following is the Court's Determination:-
DETERMINATION:
Background:
The Appellant has been employed by the respondent since 1999 as a Sessional Pharmacist.
He is paid 8 hours for working a morning and afternoon session in the one day. He claims that a female comparator is paid 5 hours if she works a morning session and 4 hours if she works an afternoon session.
He claims that he is being directly and indirectly discriminated against on the grounds of gender and age in terms of S.6 2(a) and (8) of the Acts and contrary to S.19 and S.29 of the Acts.
He referred a complaint to the Director of Equality Investigations on 2nd September 2004. In her Decision, dated 2nd August 2006, the Equality Officer found that the HSE Dublin North East did not discriminate against the Complainant/Appellant on gender and age grounds in terms of S.6 2(a) and (f) of the Employment Equality Acts of 1998 and 2004 contrary to the provisions S.19 (1) and S.29 (4) of the Acts in relation to his pay.
This Decision was appealed by the Complainant/Appellant on 9th September 2006. A Labour Court hearing was held on 6th March 2007.
Appellants Arguments:
The Complainant/Appellant is male and aged 34years. He has been employed since 1999 as a Sessional Pharmacist by the Addiction Services of what is now called the HSE –Dublin North East.
He was told at the commencement of employment that he would be paid 8 hours for working a morning and afternoon session. This would consist of 4 hours for a morning session and 4 hours for an afternoon session. He submits that his nominated comparator, Ms P (a Pharmaceutical Assistant, but paid at the same hourly rate) has been paid 5 hours for a morning session and 4 hours for an afternoon session. He alleges (with supporting documentation) that his comparator (a 56 yr old female) was consistently paid 5 hours for a morning session and 4 hours for an afternoon session, which was consistent with the rate paid to pharmacists in other Health Board/HSE areas. On a number of occasions, he claims, he worked directly alongside his comparator, the supervising pharmacist and was paid for one hour less than her on each occasion.
He claims that it is easier for older female pharmacists to work mornings or afternoons only as they typically are more financial secure and have more optional use of their working time than younger male pharmacists who are usually struggling to pay mortgages and bring up young families. He alleges that the higher payment for the morning sessions to his comparator and others like her is discrimination against him on both the age and gender grounds.
Respondent’s Arguments:
The Respondent does not deny that part-time pharmacists receive 5 hours for morning sessions, and 4 hours for afternoon sessions and 8 hours for a full day. This was confirmed following agreement with IMPACT in February 2005 which regularised the payment structure for Sessional Pharmacists.
In response to a query from the Equality Officer in May 2006, the HSE provided the following table in regard to the age and gender of Sessional Pharmacists in the HSE Northern Area.
| Males | Ages | Hrs Worked in Sept 04 | Females | Ages | Hrs Worked in Sept 04 |
| 1 | 69 | 28 | 1 | 58 | 45 |
| 2 | 32 | 85 | 2 | 46 | 26 |
| 3 | 31 | 27 | 3 | 30 | 11 |
| 4 | 38 | 0 | 4 | 49 | 110.5 |
| 5 | 27 | 66 | 5 | 30 | 0 |
| 6 | 28 | 0 | 6 | 55 | 16 |
| 7 | 66 | 48 | 7 | 54 | 207 |
| 8 | 26 | 16 | 8 | 68 | 100 |
| 9 | 30 | 136 |  | | |
| 10 | 32 | 26 | | | |
It was agreed that the Complainant/Appellant’s comparator (and others, both male and female) were paid both 5 + 4 hours and 4 hours + 4 hours on different occasions, some erroneously. Similarly, the Complainant /Appellant (and others both male and female) were paid 5 hours + 4 hours for a full day, also erroneously. Some 9-hour claims were reduced by management to 8 hours, others were not, and were erroneously processed for payment at 9 hours.
The Respondent acknowledged at the hearing that if there was outstanding remuneration owing to the Appellant in respect of extra hours worked in the mornings, then this would be repaid to him.
Nevertheless, the fact remains that the majority of Sessional Pharmacists claimed 8 hours rather than 9 hours for a full day working in clinics.
Facts Established:
1. The agreed rates for Sessional Pharmacists in clinics are 5 hours for a morning session and 4 hours for an afternoon session only and 8 hours for a full day.
2. The considerable records obtained by the Complainant/Appellant show considerable variation in the way the Sessional Pharmacists were paid.
3. The undisputed table of the gender and ages of Sessional Pharmacists shows that the numbers and ages of males and females are not particularly dissimilar.
4. Ms P is a suitable comparator within the terms of S7 (3)(b) of the Act.The Law Applicable:
In order to establish a prima facie case of discrimination, the evidential burden is on the complainant to establish the primary facts on which they rely and to satisfy the Court that these facts are of sufficient significance to raise an inference of discrimination, thus shifting the burden to the respondent (as established in the case ofMitchell v Southern Health Board[2001] ELR201)
For indirect discrimination to occur, a requirement or practice which is neutral on the surface is such that it disadvantages person of, in this case, the same sex and similar age to the complainant/appellant, is not appropriate or necessary and cannot be justified by objective factors.
Findings of the Court:
On the primary facts, the Complainant/Appellant has established only that a variety of payment practices existed in regard to Sessional Pharmacists. These may have been inconsistent and lacking in logic. However, applying the statistics relating to age and gender of the Sessional Pharmacists employed by the HSE Dublin North, there does not, in the view of the Court, appear to be a prima facie case of discrimination on either the age or gender ground.
Determination:
The Court upholds the Decision of the Equality Officer and dismisses the Appeal.
Signed on behalf of the Labour Court
Raymond McGee
15th May, 2007______________________
JB./MGDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.