Mr. T. P. Sheridan and 12 Others
(Represented by SIPTU)
-v-
Health Services Executive - North Eastern Area
(Cavan General Hospital)
1. DISPUTE
1.1 The dispute concerns a claim by SIPTU, on behalf of 13 named male employees, that they are entitled to equal pay with a named female comparator in accordance with Section 7 of the Employment Equality Acts, 1998-2007.
2. BACKGROUND
2.1 The complainants are employed by the respondent as porters/attendants. They claim that they perform similar work and work of equal value to a named female employee who is employed by the respondent organisation as a telephonist/receptionist. The respondent denies the allegations and claims that there are 'grounds other that gender' for the difference in pay to the complainants and the named female comparator.
Consequently the Union referred these equal pay claims to the Director of the Equality Tribunal on 8th September, 2005 under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 9th October, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A preliminary hearing took place on 15th November, 2007 after which both parties made submissions. Work inspections took place on 18th and 20th January, 2008 and these were followed by a final hearing on 30th January, 2008. Further information was received from the respondent on 18th February, 2008.
3. SUMMARY OF THE UNION'S SUBMISSION
3.1 According to the Union the complainants are all graded as Porters at Cavan Regional General Hospital. For this position there is a 7-point pay scale ranging from €27, 557 to €30,638 (as at 01/06/07). The Union notes that all of the complainants are currently on the maximum point of this scale and this equates to an hourly rate, based on a 39-hour week of €15.11. In addition to the general portering duties associated with this grade the complainants are assigned to Telephone/Reception duties on a rostered basis. From a total duty hour roster of 326½ hours some 63½ hours are spent providing Telephonist/Receptionist duties. This, the Union notes, equates to 19.4% of the duty roster and, therefore, cannot be described as infrequent or inconsequential in terms of the totality of the job performed by the complainants. By contrast the named comparator is graded as a Clerical Officer and has always been employed as a Telephonist/Receptionist in Cavan Regional General Hospital. Her hours of work are from 8.00a.m. to 3.30p.m. Monday to Friday. According to the Union the pay scale for this position comprises a 13-point scale ranging from €23,231 to €37,651 (as at 01/06/2007). The named comparator is currently on the maximum point of the scale and the Union notes that this equates to an hourly rate based on a 37½-hour week of €19.31.
The Union submits that there are two claims to be considered by the Equality Officer in relation to these claims. Firstly that the work of the complainants, while performing Telephonist/Receptionist duties, represents like work as determined by Sections 7(1)(b) and 7(1)(c) of the Employment Equality Acts, 1998-2004. As such, it is argued, the complainants are entitled to the same rate of remuneration as the named comparator for all time spent on the same duties. In this regard the Union states that the European Court of Justice2 has issued judgements, which require that there be transparency in pay systems. The Union says that the net effect of these judgements are that an inconvenient hours supplement is not to be taken into account in calculating the salary which serves as the basis for a pay comparison and that equal pay must be ensured, not only on a basis of an overall assessment of all the consideration granted to employees, but also in the light of each aspect of pay in isolation. It is the Union's contention that there are no material differences in the work performed by the complainants and that performed by the named comparator while the complainants perform Telephonist/Receptionist duties. In terms of Section 7(1)(b) of the Employment Equality Acts, 1998-2004 the Union says that it is accepted that, by virtue of the differing times of duty, there may be minor differences in the actual tasks being performed, or in the specific time requirement spent on particular aspects of the task requirements. It is the Union's contention that such differences are of small importance in relation to the work as a whole and are not significant in relation to the work as a whole. In relation to Section 7(1)(c) of the 1998-2004 Acts the Union states that given that the same tasks are performed in the same location there are no differences in relation to skill, mental or physical requirements, responsibility or working conditions and that any assessment will result in a finding that the demands placed on the complainants and the named comparator are equal. In support of this the Union notes that the complainants participate in the same training and up-skilling modules as the named comparator.
Secondly and notwithstanding the first claim the Union contends that the work of the complainants is at least equal in value to that performed by the named comparator in terms of skill, physical or mental requirements, responsibility and working conditions as defined in Section 7(1)(c) of the Employment Equality Acts, 1998-2004. As such, the Union says, the complainants are entitled to the same rate of remuneration as the named comparator and are also entitled to the same total remuneration package as the named comparator, including defined work and holiday entitlements. While considering the totality of the job of the complainants and conducting an assessment under Section 7(1)(c) of the Act, the Union comes to the following conclusion:
Skill
By virtue of the additional specific training and job requirements when performing portering duties, including the requirement to know and use safe lifting techniques, the Union contends that the skill level demands on the complainants are higher than that of the named comparator.
Physical Requirement:
By virtue of the physical nature of the portering function, which comprises 80% of the work of the complainants, the physical demands are higher on the complainants than on the named comparator.
Mental Requirement:
The Union considers the mental requirements to be equal in demand between the work of the complainants and that of the named comparator.
Responsibility:
The Union considers that the demands associated with the responsibility of the position to be equal.
Working Conditions:
The Union contends that the wide ranging territory covered by the complainants as part of the work rota expose them to a wide range of different working conditions which represent a higher level of demand than that placed on the named comparator.
It is, therefore, the Union's belief that an assessment of the positions under the required characteristics of the Act will show that the job of the complainants is of greater value than that performed by the named comparator. By virtue of established case law a finding of greater than equal value determines that equal pay must be implemented.
SUMMARY OF THE RESPONDENT'S SUBMISSION
The respondent notes that the complainants in this case are employed as attendants/porters and are therefore classified as support staff and are non-officers. It is the respondent's submission that in 2003 an agreement titled 'Recognising and Respecting the Role was reached between the respondent and the Union in respect of support staff. A component of this Agreement was a revised grading structure for support staff, which determines the pay scale to which they are attached. As part of this Agreement porters are assigned to Band 4 pay scale and in addition porters/attendants receive an unsocial hour allowance (+1/6) for hours worked after 18.00hrs, an allowance for Saturday work, plus ¼ for all night duty hours and single time extra for all hours worked on Sunday/Public Holiday. The respondent says that no minimal standard of education is set for the posts of attendant/porter. It is the respondent's submission that in 2000, following the intervention of the Labour Relations Commission, an agreement was reached on rosters and duties of the porter/attendant grade in Cavan General Hospital. A total of 10 employees rotate through a 10-week rotational roster and the remaining complainants cover for annual leave, sick leave, etc. According to the respondent the complainants perform a broad spectrum of duties in different Departments throughout the Hospital, which varies depending on the roster assigned to them. The respondent states that, as part of their duties, porters cover certain duties in the Telephone Reception Area on night duty from 20.00hrs to 8.00hrs. They also relieve the Telephonist/Receptionist for evening breaks from 17.30hrs to 18.00hrs daily and for breaks at weekends at 10.30 to 11.00hrs, 14.00 to 15.00hrs and 17.30 to 18.00hrs.
The respondent notes that the named comparator is a Clerical Officer and is classified as part of the management/administration group and she is covered by the terms of Circular 10/71. Other pay and conditions are set out in Circular 49/97 and subsequent adjustments e.g. national pay awards. According to the respondent the named comparator receives a basic rate of pay only for all hours worked and under an IMPACT Agreement applicants for Clerical Officer posts must have passed the Leaving Certificate (or equivalent). The respondent states that the named comparator works from Monday to Friday only. She works from 8.00-16.00hrs on Monday and from 8.00-15.30 on Tuesday to Friday. It is the respondent's submission that a number of other Clerical Officers also perform a Telephonist/Receptionist role. Two telephonist/receptionist (3 on occasion) cover the telephone duties during the majority of core office hours and outside these hours only one telephonist/receptionist is on duty. The respondent notes that the complainants do not provide relief cover for the named comparator's post and only cover the service when one telephonist/receptionist only is on duty. It is the respondent's submission that as the named comparator has only been cited in this claim by the complainants any variance in the work, which may or may not exist between the named comparators and her telephonist/receptionist colleagues is outside the scope of this investigation.
In relation to the arguments on 'like work' the respondent states that in a 10-week cycle the porter/attendant staff perform certain switchboard/receptionist duties for a total of 90½ hrs out of a total of 390 hrs worked. This represents a total of 23.2% of working time aggregate for each employee and all of these hours are worked outside 'core' hours. By comparison the named comparator performs the full composite switchboard/receptionist role for 100% of hours worked and all of her work is performed within 'core' hours.
In terms of the nature of the telephonist/receptionist duties performed the respondent says that the porters/attendants only perform certain components of the telephonist/receptionist roles. For instance porters/attendants are responsible to answer the phone and direct the call to the appropriate area, accept messages at reception and direct visitors to the appropriate Department. By comparison the named comparator performs the full scope of the role and as part of her role she is required to be proficient in Microsoft (word and excel), PIM's reporting and email in order to fulfil the totality of her job. The respondent says that there is no requirement for the porters/ attendants to have these skills. While the named comparator's colleague on the evening shift usually does the aggregation of on-call rotas, the respondent says that the named comparator can sometimes do it during her shift. The respondent states that this responsibility is significant in that an error in compilation could affect the prompt assessment, diagnosis and treatment of patients in emergency situations. By comparison the porters only have to refer to the list compiled by the named comparator (or her colleagues) to ascertain the appropriate person to call. The respondent says that a considerable amount of administrative work also flows through the telephone/reception area, which is not performed by the porters/attendants. Furthermore the respondent notes that the named comparator (and her colleagues) with relevant managers are responsible for the development of protocols in respect of service provision while porters merely follow the protocols available.
The respondent states that the period between 8.30hrs and 17.00hrs on weekdays represents the time of peak activity within the hospital. On a daily basis the operating theatres are operational to deliver routine and emergency services. All administration offices are operational. All routine paramedical services are delivered within these hours including Laboratory, Radiology and Physiotherapy. The Outpatient Department facilitates several outpatient clinics daily. Day based services such as those provided by Clinical Nurse Specialists are also operational within these hours. It is the respondent's submission that the level of responsibility in ensuring calls are appropriately directed during this period is considerable. That added to the confined space in which telephonists/receptionists operate and the fact that they cannot easily remove themselves from the area make the role in 'core' hours a high pressured job. It is therefore the respondent's submission that the activity through the telephonist/receptionist service is considerably greater during the period of the named comparator's shifts than during the periods where porters undertake elements of the role. An analysis of two periods (6/11/2007 to 11/11/2007 and 17/11/2007 to 26/11/2007) were undertaken to ascertain the level of telephone activity and the following were the findings:
6/11/2007 to 11/11/2007:
The period represents an analysis of activity for six continuous days or 144hrs during which the telephone had to be manned. The porter/attendant staff covered 78 hours of the 144 hours while the named comparator's shift spanned over a 30 hours period. In this period a total of 8,542 incoming calls were answered and a total of 20,036 outgoing calls were made. During the named comparator's period of duty an average of 195.3 calls were answered per hour with an average of 435.87 outgoing calls per hour. By comparison when the porters/attendants cover the telephone an average of 9.73 calls are answered per hour and an average of 23.23 outgoing calls are made per hour. The respondent notes that during this period, the named comparator's roster covered four days while the porters/attendants covered all six days.
17/11/2007-26/11/2007
This period represents an analysis of 10 continuous days or 240 hours during which the telephone had to be manned. According to the respondent the porters/attendants covered 131 hours of the 240 hours while the named comparator's shifts spanned over a 46-hour period. In this period a total of 13,248 incoming calls were answered and a total of 31,640 outgoing calls were made. The respondent notes that in the named comparator's period of duty an average of 196.59 calls are answered per hour with an average of 433.33 outgoing calls per hour. When the porters/attendants cover the telephone, an average of 9.57 calls are answered per hour and an average of 24.47 outgoing calls are made per hour. During this period the named comparator's roster covered six days while the porters/attendants covered all 10 days.
The respondent says that even allowing for the allocation of 2 telephonists/ receptionists (occasionally 3) during most of the 'core' hours, there is overwhelming evidence that the work activity undertaken by the named comparator is very significantly in excess of that undertaken by the porters/ attendants. This is further reinforced by the fact that porters/attendants on night duty have been provided with a television to assist in passing the time, as the level of activity would not be sufficient to sustain alertness at nighttime. It is further noted that porters/attendants also exchange roles every three hours at night-time again to break the monotony of night telephone working.
The respondent says that outside of core hours (9.00-17.00hrs) almost all calls fall into one of three categories - patient enquiries which are directed to the appropriate ward or internal requests to contact on-call staff or calls from staff, other hospitals, etc which are directed to Nursing Administration. Conversely during core hours the level of complexity of calls is significantly higher requiring the telephonist to have an extensive knowledge of services provided within the hospital and key personnel providing each service and also a comprehensive knowledge base of services provided elsewhere in the respondent organisation. Examples include:
An elderly lady rang looking for the cleaner. On gently probing further with the lady as to her requirement it transpired that she was in receipt of the services of a Home Help and it was this person she was seeking. The Home Help service is not co-ordinated from the hospital, rather through the Home Help Services Manager's Office in the Community Services. The telephonist provided the elderly lady with the correct phone number and gave her the name of the manager of that service.
The telephonist received a call from a service user asking to speak to someone responsible for ENT. There are currently 2 strands to the ENT service in the hospital - normal ENT and ENT covered under a waiting list initiative. Each service is co-ordinated by a different person. On enquiring as to the exact nature of the issue the telephonist was able to direct the call in the appropriate direction.
A caller requested to speak to someone in authority regarding a letter she had received. By asking the appropriate questions the telephonist was able to identify that the call did not need to be directed to senior management, rather to the officer whose role it was to deal with the nature of the issue raised by the caller.
A service user enquired how she could request a copy of her medical notes. The telephonist knew that procedures differed depending on whether the request was an FOI request or not. By asking the appropriate questions the telephonist referred the call to the correct service area.
Enquiries such as how to obtain a medical card and how to make an appointment to access a service.
The respondent notes that the throughput of personnel arriving to the hospital is also considerably higher during core hours and the various directions in which people may need to be directed to, far greater.
In relation to 'grounds other than gender' for the difference in pay to the complainants and the named comparator the respondent states that the different rates that apply to each are different scales for different categories of grades, which apply irrespective of the sex of the post holder. The respondent states that rates of pay and conditions for all grades of staff in the respondent organisation are negotiated through collective agreements by union representatives for each of the categories of staff. The complainants are assigned to Band 4 pay scale in accordance with the 2003 Agreement entitled 'Recognising and Respecting the Role'. On the other hand the named comparator's pay and conditions have been negotiated nationally and are outlined in various Circulars. The respondent notes that within grades there is no difference in pay between male and female staff and there is no requirement for all porters to be male and all telephonists/receptionists to be female. In Cavan General Hospital one of the telephonists is male while in Our Lady of Lourdes Hospital in Drogheda two of the telephonists are male. Also in the hospital in Drogheda a number of the porters are female. The respondent notes that no minimal standard of education is required for the post of porters/attendants whereas Clerical Officer posts require the applicants to have passed the Leaving Certificate (of equivalent). It is the respondent's submission that where a higher standard of education and training is required for one post over the other, as in this case, it would not be unusual for the higher post to be remunerated on a higher pay scale. On this basis the respondent contends that there are objective non-discriminatory reasons for the differences in the levels of remuneration paid.
The respondent asks the Equality Officer to conclude that these claims are not well founded.
CONCLUSIONS OF THE EQUALITY OFFICER
The issue for decision in these claims is whether or not the complainants performed 'like work' with the named female comparator within the meaning of Sections 7(1)(b) and 7(1)(c) of the Employment Equality Acts, 1998-2004. A list of the complainants and the female comparator is set out in Appendix A. It is also necessary to examine the issue of 'grounds other than gender' for the difference in pay between the complainants and the named female comparator in accordance with Section 19(5) of the Acts. In making my decision in these claims I have taken into account all the submissions, both written and oral, from the parties.
In deciding on the issue of 'like work' I spoke with Mr. Sheridan about the work performed by the complainants who were all interchangeable with each other. I also observed Mr. D. McCaul, Mr. S. Kelly and Mr. P. Galligan when they were undertaking the telephonist/receptionist duties. I spoke with the named comparator about the duties she undertakes as a telephonist/receptionist and I observed her at her work. My job descriptions for the complainants and the named female comparator are set out in Appendices B and C respectively.
Under Section 7(1)(b) of the Acts:
"... in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if -
(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"
The nature of the work carried out by each of the complainants and the named female comparator (as outlined in their job descriptions) is very different. I find that the work performed by each of the complainants and that performed by the named female comparator is not 'like work' within the meaning of Section 7(1)(b) of the Employment Equality Acts, 1998-2004.
Under Section 7(1)(c) of the Acts -
"... in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if -
(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"
In order to establish the question of whether or not the work of each of the complainants and the named female comparator is equal in value I have examined their work under the headings of skill, physical or mental requirements, responsibility and working conditions as follows:
Skill:
The complainant has been trained in safe lifting techniques. When operating the cardiac arrest bleep he must know what procedures to follow. While operating the switchboard the demands on the complainant are not great. By comparison the named female comparator has to handle a large volume of phone calls daily and she has to deal with a greater number of callers to the reception area. There is a high level of skill required to handle such a situation in a challenging and pressurised work environment.
I find that a higher level of skill is required from the named female comparator.
Physical Requirements:
The complainant's job is very active for example he goes here there and everywhere in the hospital. The complainant must transport heavy items around the hospital e.g. oxygen tanks. There are no physical demands on the complainant when he carries out the telephonist/receptionist duties. The named female comparator is required to sit in front of a VDU screen and either make or answer calls. As such there is very little physical effort required in her job.
I am satisfied that there are greater physical requirements associated with the job of the complainant than that of the named female comparator.
Mental Requirements:
There is not a lot of mental requirement needed of the complainant in order for him to carry out his duties as a Porter. Equally he is not mentally challenged when he undertakes the switchboard/receptionist duties. By contrast I note that the named female comparator deals with a greater volume and variety of calls during the day and she has a greater knowledge and understanding of the operation of the switchboard and the computer system which is used to check the whereabouts of a patient. Furthermore the named female comparator has to deal with more callers to the reception area throughout the day.
I find that the named female comparator has a higher level of mental requirements than the complainant.
Responsibility:
The complainant is responsible for ensuring that oxygen tanks are full and operational. In the event of a cardiac arrest he is responsible for ensuring prompt action in getting the necessary equipment to the scene of the arrest as quickly as possible. It is the complainant's responsibility to ensure that patients are transported around the hospital as necessary. He must also deliver pharmacy baskets and solutions to wards. It is the responsibility of the complainant to ensure that all soiled linen and waste is removed from wards on a regular basis. The complainant is responsible for the switchboard while providing cover, responding to queries from callers to reception and taking appropriate action if one of a number of alarms goes off while he is in the reception area.
The named female comparator must handle a very large number of calls on a daily basis in a professional and competent manner and under constant pressure. She must use her discretion in responding to calls and maintain a level of confidentiality about the nature of the calls. The named female comparator is at the front line in meeting visitors to the hospital. She must deal with all callers in a courteous manner and manage dealing with phone calls and callers to reception in an efficient and effective manner while operating in a pressurised work environment. The named female comparator is responsible for correctly invoking procedures when a call is received on the emergency phone. She must take appropriate action when one of a number of alarms can go off in the reception area. The named female comparator must maintain up-to-date registers, rotas and patient lists.
I am satisfied that there is greater responsibility associated with the work performed by the named female comparator.
Working Conditions:
The complainant works mainly indoors but on some occasions he must work outdoors. This outdoor work is undertaken in all weather conditions. While on switchboard/receptionist duties the complainant is based indoors in the confines of the reception area. The named female comparator is always based indoors in the receptionist area, which is a confined working space.
I find that the demands made on the complainant in terms of working conditions is greater than those made on the named female comparator.
In summary, I consider the demands made on the named female comparator in terms of skill, mental requirements and responsibility to be higher than those made on each of the complainants whereas the demands made on each of the complainants in terms of physical requirements and working conditions are greater than those made on the named female comparator. Having balanced the demands made of both the complainants and the named female comparator I am satisfied that the named female comparator performs higher value work to that performed by each of the complainants. Hence the work performed by each of the complainants is not equal in value to that performed by the named female comparator in terms of Section 7(1)(c) of the 1998-2004 Acts.
The complainants have argued that their work, while performing Telephonist/ Receptionist duties represents 'like work' to the named female comparator having regard to the definition under the Acts. It is further argued that they are entitled to the same rate of remuneration as the named female comparator for all the time spent on the same duties. I cannot concur with this view, as there is a vast difference in the level of work performed by the complainants either providing cover or working at night to that performed by the named female comparator on a daily basis. Furthermore I am satisfied that the named female comparator's knowledge of the computer system she operates is much greater than that of the complainants. Having looked at the jobs in their totality and having compared only the switchboard/receptionist duties I am satisfied that 'like work' does not exist.
It is notable in this claim that the complainants have named only one of the four persons who are employed as Clerical Officers and who operate the switchboard and act as receptionist. The difference between the named female comparator and the other three Clerical Officers is that the comparator works day-time whereas the others operate on the basis of a 3-week rota. Asked for the reason for this the respondent said that there was no significance to this but did say that the named female comparator was the longest serving of the four Clerical Officers. As well as operating on the basis of a 3-week rota the three Clerical Officers who have not been named in this claim also perform out-patient reception duties which are not performed by the complainants. I note that one of these three Clerical Officers is male. The complainants cannot say that they are being directly discriminated against on the grounds of gender in relation to pay in circumstances where a male is employed as a Telephonist/ Receptionist. It is noteworthy that the Supreme Court in the case of National University of Ireland Cork and Alan Ahern & Ors3 and subsequently the Labour Court in the case of Department of Justice, Equality and Law Reform and Civil Public and Services Union (CPSU)4 have highlighted the importance of not being selective in relation to the naming of comparators. As I have found that the complainants do not perform 'like work' with the named female comparator it is not necessary, in these claims, to address the question of indirect discrimination.
In responding to the respondent's submission the complainants have been critical of the respondent's reliance on statistics in relation to telephone traffic volumes. I cannot accept this as the increased traffic volumes while the named female comparator is employed means that there are greater demands on her in doing the job of Telephonist/Receptionist than there are on the complainants who provide short periods of cover during the day and cover at night when there are significantly less demands on the service being provided both in terms of the volume of calls and the number of callers/visitors. It has been argued by the respondent that the nature of the calls dealt with by the named female comparator is more complex than those dealt with by the complainants. The complainants argue that when they undertake the telephonist duties they are at the frontline and must handle all calls irrespective of their complexity. I note that the respondent does not have records on the nature of the actual calls received hence it is not possible to analyse calls on the basis of complexity. However I am satisfied that the named female comparator must be able to deal with calls, however complex, very promptly in circumstance where she is under pressure with more calls coming in and people calling to reception. That same level of pressure is not on the complainants when they perform the receptionist duties.
In terms of 'grounds other than gender' for the difference in pay to the complainants and the named female comparator within the meaning of Section 19(5) of the Acts I note that it is not necessary for me to consider this aspect of the claims as I have already found that the complainants do not perform 'like work' with the named comparator.
DECISION
In view of the foregoing I find that the complainants do not perform 'like work' with the named female comparator in terms of Sections 7(1)(b) or 7(1)(c) of the Employment Equality Acts, 1998-2004. Hence I find that the complainants have no entitlement under the legislation to the same rate of remuneration as that paid to the named female comparator.
______________________
Gerardine Coyle
Equality Officer
3rd March, 2008