THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-231
Frank O'Dowd
(represented by Services Industrial Professional and Technical Union)
versus
Sligo/Leitrim Mental Heath Services (now HSE West)
File reference: EE/2006/438
Date of issue: 18th November 2010
Keywords: Employment Equality Acts, Equal Pay, Gender, Indirect discrimination, Statistical evidence.
1. Dispute
1.1 This dispute concerns a complaint by Mr Frank O'Dowd against his employer Sligo/Leitrim Mental Health Services that he is entitled to the same rate of remuneration as that paid to a named female comparator in accordance with the provisions os Section 19 (1) of the Employment Equality Acts 1998-2008 [hereinafter referred to as 'the Acts']. The respondent does not dispute like work exists between the complainant and the comparator.
1.2 Through his trade union representative, the complainant referred his complaint under the Acts to the Director of the Equality Tribunal on 29th November 2006. In accordance with her powers under Section 75 of the Act, the Director delegated the case on 11th November 2008 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. An initial enquiry took place on 24th April 2009. Due to adjournments requested by both parties, the final hearing was not held until 9th April 2010. The last piece of correspondence requested by the Equality Officer was received on 30th June. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
2. Summary of the complainant's case
2.1 Mr O'Dowd commenced work as a psychiatric nurse with the former North Western Health Board on 18th September 1969. He was appointed to a permanent position on 1st April 1971. He was appointed to the grade of Senior Staff Nurse on 5th November 1999. His named comparator (Ms Z) has been a permanent employee with the respondent since 1st September 1972. Ms Z became a senior staff nurse on the same day as him. Both Mr O'Dowd's and Ms Z's basic salary is the same - €49,194 (at the time of hearing). However, Ms is in receipt of an additional monthly allowance of €493.20.
2.2 The genesis of this allowance is from an agreement reached by the relevant Trade Unions and the Health Boards in the 1980s regarding the removal of promotion by seniority in the mental health services. Prior to this agreement, there were segregated male and female promotion panels by seniority. This was because of the practice that only male psychiatric nurses looked after male patients and only female psychiatric nurses looked after female patients. Promotion was solely by seniority within specific psychiatric hospitals. The complainant argues that the female seniority panel moved faster than the male panel due to childrearing and other caring responsibilities and because women tended to retire younger. Therefore even though Ms Z was less senior than he was, she had the opportunity to 'act up' to Deputy Nursing Officer (today's equivalent would be Clinical Nurse Manager 2) while he did not. In 1988, both Ms Z and Mr O'Dowd applied for the position of Deputy Nursing Officer. Mr O'Dowd was placed on the consequent panel although he was not promoted as there were not enough vacancies. Ms Z was unsuccessful in the competition.
2.3 However, as part of the agreement anybody who was unsuccessful in the competition but was previously acting up was entitled to an allowance as compensation for the post that they would have had an expectation of being promoted had the seniority panels remained. This allowance equates to 90% of the difference between the maximum of the salary of the nurse's substantive post and the maximum of the next promotional post. It was agreed that beneficiaries of this allowance would retain this allowance for the duration of their service or until appointed to a higher post.
2.4 The complainant submits that this is indirectly discriminatory because a seemingly neutral provision like creating non-segregated meritocratic promotion panels disproportionately disadvantaged male psychiatric nurses as they were less likely to have been acting up to the next grade because of the reasons outlined at Paragraph 2.2. Only people who had been previously acting up to the next grade and were not appointed to the next grade as a result of the 1988 competition were eligible for the 90% allowance.
2.5 He submits this discrimination is ongoing and is raising the issue now as it will have an impact on his pension entitlements.
3. Summary of the respondent's case
3.1The respondent argues this claim is out of time as the competition took place in 1988. It refers to Section 77 (5) (a) of the Acts that a claim may not be referred at the end of a period of 6 months from the date of the occurrence or the most recent occurrence of the act of discrimination or victimisation to which the case relates.
3.2 HSE West, which Sligo/Leitrim Mental Health Services form part of, concede that Mr O'Dowd performs like work and work of equal value to Ms Z. It also concedes that Mr O'Dowd is remunerated differently from her. However, the HSE contends that the basis for the difference in remuneration is not unlawful discrimination and was determined by a national agreement.
3.3The background to this agreement is Section 17 of the Employment Equality Act 1977 allowed for the exclusion of members of either sex from particular posts or assignments by reason of privacy or decency. The Department of Health and the various Health Boards interpreted this section to apply to psychiatric hospitals. This interpretation allowed for a system of promotion that was based on segregated panels by seniority.
3.4 S.I. 302 of 1982 European Communities (Employment Equality) Regulations repealed this Section of 1977 Act so psychiatric hospitals had to be brought within the scope of the Employment Equality Acts. This meant that the segregated system of promotion had to be changed.
3.5 Employers and Trade Unions entered into discussions under the aegis of the Psychiatric Nurses Forum. This forum met on 23 occasions between 1983 and 1986. No promotions took place during this period so a large number of nurses were filling promotional posts in an acting capacity. Both sides could not agree on the issue of compensation for loss of promotion so it was referred to the Labour Court.
3.6 The Labour Court made a recommendation in November 2007 that nurses who had acted up to promotional posts since the non-filling of such posts in a permanent capacity was introduced and who were unsuccessful in obtaining a permanent post following competitive interview would be entitled to the 90% allowance.
3.7 The respondent points out that a similar case to that made by the complainant was made in 1990. The Equality Officer found against the complainants and this decision was upheld by the Labour Court.
4. Conclusions of the Equality Officer
4.1 Section 19 (1) of the Act provides that where A and B represent two people of the opposite sex it shall be a term of the contract under which A is employed that A shall at any time be entitled to the same rate of remuneration for the work A is employed to as B who, at that or any other relevant time, is employed to do like work by the same or associated employer.
4.2 Following Schnorbus v Lan Hessen this is clearly a case of potential indirect rather than direct discrimination:
According to the criteria established by the caselaw of the Court, only provisions which apply differently according to the sex of the persons concerned can be regarded as constituting directly based on sex.
In this instant case both men and women were in acting positions prior to the competitive interview and both men and women received the 90% allowance.
4.3 In relation to time limits, I cannot accept the respondent's line of reasoning (Paragraph 3.1). To do so would be to ignore Section 17(5)(c) which unambiguously states that the time limits in 17(5)(a) and 17(5)(b) does not apply to equal pay claims.
4.4 Regarding the substantive issue, I must examine first whether the circumstances that led to 90% prejudices significantly more men than women. If I find that to be the case, the complainant will establish a prima facie case of indirect discrimination and the respondent will have to prove that this is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Therefore, I must examine the proportionate ratio of male psychiatric nurses to female psychiatric nurses in receipt of the 90% allowance. The correct pool of comparators is those who applied for the confined competition in the old North Western Health Board area. In Ursula Voss v Lan Berlin the European Court of Justice recommended 'the best approach to the comparison of statistics is to consider on the one hand the respective proportions of men in the workforce able to satisfy the requirement...and of those unable to do so and, on the other, to compare these proportions as regards women in the workforce'.
Table of statistical comparisons
Male Female Total
Number of psychiatric nurses (including community nurses) in North Western area in 1988 66 54.5 120.5
Number of psychiatric nurses in North Western area in 1988 in percentages 55% 45% 100%
Psychiatric nurses acting up to Deputy Nursing Officer between 1982 and 1988 in North Western area i.e. would be eligible for 90% allowance if unsuccessful in competition 14 10 24
% of respective gender acting up to Deputy Nursing Officer between 1982 and 1988 i.e. would be eligible for 90% allowance if unsuccessful in competition 21% 18%
Number of respective genders in receipt of the 90% for Deputy Nursing Officer post 1988 competition 4 5
% of respective genders in receipt of 90% allowance i.e. who were unsuccessful in competition and were acting up previously 29% 50%
4.5 The complainant's argument that women had a greater chance of acting up is evidently incorrect as 18% of women got the opportunity to act up during the relevant in comparison to 21% of men. Therefore, the statistical information does not indicate a prima facie case of indirect discrimination. The core of Mr O'Dowd's case has been the 90% allowance rather than the promotion competition itself. Therefore, although a greater proportion of women are in receipt of the 90% allowance, that is because more men were successful in both the Deputy Nursing Officer and Nursing Officer competitions. Of the 14 people appointed to Nursing Officer as a result of the 1988 competition, 11 were men. Almost all of these were acting up to either Deputy Nursing Officer or Nursing Officer. Of the 12 people appointed from the Deputy Nursing Officer panel, 7 were men. These facts do not support Mr O'Dowd's argument.
4.6 As this complaint fails at first instance, there is no need to consider the defence in Section 22 (1)(b).
Decision
I have concluded my investigation of Mr O'Dowd's complaint and hereby make the following decision in accordance with Section 79(6) of the Act. I find that the complainant was not indirectly discriminated by the respondent.
_____________
Orlaith Mannion
Equality Officer