FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : HSE (REPRESENTED BY HR DIRECTORATE HSE) - AND - HELEN BUCKLEY (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal Under Section 83 Of The Employment Equality Acts, 1998 To 2008
BACKGROUND:
2. The Worker appealed the Equality Officer's decision to the Labour Court on the 17th December, 2009. The following is the Court's determination:
DETERMINATION:
- The case comes before the Court by way of an appeal of a decision of the Equality Tribunal made pursuant to Section 79 of the Employment Equality Acts, 1998 – 2008.
The Equality Officer described the dispute in the following terms:- This dispute concerns an equal pay claim by Ms Helen Buckley that she performs 'like work' in terms of section 7 of the Employment Equality Acts 1998-2008 with two named comparators and she is therefore entitled to the same rate of remuneration as that paid by the respondent to those comparators in accordance with section 29 of the Acts. The claim is made on the grounds of gender and the named respondent is the Health Services Executive (HSE).
On the basis of the determination of this Court inIrish Aviation Authority v Irish Municipal, Public and Civil Trade Union [DEP993]the Equality Officer found that the“difference in remuneration between the claimants and the comparators derives from the grading structures operated by the respondent. Therefore a case of direct discrimination does not arise.”
He went on to say“ I am therefore investigating a claim of indirect discrimination”
The Equality Officer considered the essential elements necessary for a Complainant to establish a prima facie case of “indirect discrimination.” He cited the decision of the European Court of Justice in Enderby v Frenchay Health Authority, C-127/92, [1991] IRLR 43, in which it stated;
"Where significant 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, Article 119 of the Treaty requires the employer to show that the difference is based on objective justification unrelated to any discrimination on grounds of sex."
The Equality Officer went on to note that this decision was applied by the Labour Court in the Irish Aviation Authority case in the following terms:
- "The Court accepts that the degree of gender imbalance referred to in Enderby must be considered in the context of the material facts of that case as set out in the reference by the Court of Appeal in England and Wales (in the Enderby Case). It does, however, indicate that the Court of Justice considered that the degree of gender imbalance in both the claimant and the comparator grade must be particularly marked before a prima-facie case of discrimination can arise."
The Equality Officer found that the “degree of gender imbalance” was not “particularly marked” in the case of the Comparator grade at the relevant time ie the time of the claim or within the three years prior to the date of that claim. Table 1 below sets out the gender breakdown of the Comparator grade.
Table 1
| Date | Males | Females |
| June 2003 | 50.56 | 49.44 |
| July 2006 | 52 | 48 |
| April 2009 | 50.29 | 49.71 |
The equality officer cited the Determination of this court in Midland Health Board and the South Eastern Health board v The Irish Nurses Organisation in which this court took the view that in order for the claim to succeed there must be statistical evidence of a gender imbalance in the complainants grade and the comparator grade in the three year period prior to the claim being made.
On the basis of these findings the Equality Officer decided as follows -
- “I have investigated the above issues and make the following decision in accordance with section 79 of the Acts that as the complainant has failed to establish a prima facie case of discrimination her equal pay claim on the gender ground fails.”
The Facts of the CaseThe Complainant, Ms Helen Buckley (Represented by the INMO), is employed by the HSE (the Respondent), as an Assistant Director of Nursing (General), in the Naas General Hospital. She took up this post on 7th April 2003 and is paid on the Assistant Director of Nursing (Non Band 1) salary scale which ranges from €52,059 by annual increment to €63,575 per annum. The named comparators are paid on the Assistant Director of Nursing Mental Health salary scale which ranges from €56,138 by annual increment to €68,853. The Complainant is claiming that the difference in pay constitutes pay discrimination contrary to Section 19(1) of the Employment Equality Acts, 1998 – 2008.
Summary of the Complainants Case:
The Complainant submits: -
• That the pay of both the Assistant Director of Nursing (General) and the Assistant Director of Nursing in the mental health services are determined by a collective agreement commonly known as the “Blue Book.” The Complainant alleges that there is no objective justification for the differences in salary. She submits that the comparators perform like work or work of equal value within the meaning of the Act. She submits that historically the Assistant Directors of Nursing in the Mental Health Services were male and those in the General Health Services were female. She refers the Court to the gender breakdown of the Assistant Director of Nursing in the respective services when the bluebook was agreed in 1995/1996The Figures are set out in the table below.
Table 2
| Service | %Males | %Females |
| Mental Health Services | 66% | 34% |
| General Health Services | 90% | 10% |
- On this basis she submits that she has established a prima facie case of discrimination within the statutory meaning of that term.
- • That the Equality Officer erred in law and in fact in deciding that the complainant was unable to establish a prima facie case of indirect discrimination.
• That the Equality Officer misinterpreted Section 19(2) of the Act in deciding that the “relevant time” within which to examine statistics as to whether there was a gender imbalance was the three years prior to the the date of the claim i.e. June 2003
• That the Equality Officer erred in fact and in law in failing to take into account all material, legal and factual circumstances to determine the point in time at which the legality of the practice complained of was to be addressed
• The Equality Officer erred in fact and in law in failing to consider the degree of gender imbalance of the complainant and comparator grades at the time the pay and grading structure for all nurse management grades was established i.e. 1995/1996
• The Equality Officer failed to give due regard to the fact that the gender imbalance in the complainant and comparator grades at the point in time when the Blue Book Agreement was being negotiated, satisfies the statistical requirement to establish a prima facie case of indirect discrimination
• That the Equality Officer failed to give due regard to the fact that the “Blue Book” pay determination system has already been determined by the Labour Court to be indirectly discriminatory on the gender ground and therefore the rate of pay of the complainant and comparators is directly derived from a rate of pay deemed to have been tainted by indirect discrimination
• That the Equality Officer failed to give due regard to the fact that since the pay of the complainant and the comparator grades is determined by the pay of their respective Director of Nursing, the claim for equal pay could not be confined to simple statistical analysis of the two grades concerned
• That the Equality Officer failed to give due regard to the almost exclusively female composition of the Director of Nursing General Services Grade and the predominantly male composition of the Director of Nursing Mental Health Services grade both prior to and at the point in time when the Blue Book Agreement was being negotiated.
• That the Equality Officer failed to give due regard to the fact that the Complainant was initially appointed to the post of Assistant Director of Nursing Non Band 1 at Connolly Hospital. She and Maire Hoey were interchangeable as Non Band 1 Assistant Directors of Nursing there. Marie Hoey has been deemed entitled to equal pay with Assistant Director of Nursing Mental Health Services.
- On this basis she submits that she has established a prima facie case of discrimination within the statutory meaning of that term.
Reg. V. Secretary of State for Employment, ex parte Seymour-Smith [ECJ 3 WLR 1993],
Enderby v Frenchhay Health Authority [ECJ C-127/92]
Hoey v The Northern Area Health Board [DEC 069 2004]
Bailey v Home Office [IRLR 369 CA]
MacCarthys Ltd v Smith (c-129/79) [1980] ECR 1275
The Respondent’s Case
The Respondent submits that
• The Equality Officer was correct when he found that the Complainant had failed to establish a prima facia case of pay discrimination on the gender ground
• The comparator grade was not, at the relevant time, a predominantly male grade. In this regard it referred the Court to the opinion of Advocate General Jacobsin Jammstalldhet Sombudsmannen v Orebro Lan Landsting Case C-236/98in which he said of a woman seeking to establish an infringement of the principle of equal pay in a case of indirect discrimination“First she must be part of a group of predominantly female employees performing work of equal value to that performed by a group of predominantly male employees”
•The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001that was transposed into Irish law byStatutory Instrument 337/2001provides that “in any proceedings facts” must be established “by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her”before the burden of proof of compliance passes to the respondent. The Complainant has failed to establish such facts and accordingly her claim cannot succeed.
• The details of the case before the Court are similar to those that were considered by the ECJ inEnderby v Frenchay Health Authoritythat was followed by the Labour Court inIrish Aviation Authority v Irish Municipal, Public and Civil Trade Union.In both of those cases the relevant court held that the complainant must establish that she belongs to a group of predominantly female workers who are paid less than a group predominantly male workers before the burden of proof shifts to the respondent to justify the difference in payment on objective grounds. In this case such conditions did not exist at the relevant time.
• The Labour Court inMidland Health Board, South Eastern Health Board v Irish Nurses Organisation [DEP 051] found as follows
“The Act at Section 8 (5) does not lay down any time limit for bringing a claim per se, but does state that:
- “In any proceedings brought by a person to recover arrears of remuneration to which he is entitled under this Act the person should not be entitled to be awarded any payment by way of such arrears in respect of a time earlier than 3 years before the date on which the relevant dispute was referred to an Equal Pay Officer”.
From this the Court takes the view that the discrimination must still have been continuing up to a period at least three years prior to the claim being made
This means that in order to succeed in their claim a complainant should be able to prove that the alleged gender imbalance continued up to at least the three years period in respect of which compensation might be awarded.
In June 2003 the gender composition of the comparator grade was 50.6% male and 49.44% female.
• This ratio has not changed to any great extent between 2003 and the date of the hearing of the case by this court. (Figures supplied to the Court and cited in this determination)
• The Case of Ms Hoey cited by the Complainant can be distinguished on the grounds that she was performing like work with the comparator grade and this point was conceded by the respondent.
Findings of the Court:
- The issue before the Court is preliminary in nature and relates to therelevant time period in respect of which the Court should, taking all factors into account, determine if a prima facie case of pay discrimination on the gender ground has been established.
Section 77(5) of the Employment Equality Act 1998 - 2004 provides that:
“(5) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
From this the Court concludes that the discrimination complained of must have been in place at the date of the Complaint or within a period of time 6 months prior to that date. The Equality Tribunal or the Labour Court may, where there is good reason for so doing and on application by the Complainant, extend this period to 12 months.
It is clear that at all times the Complainant was on a lesser salary scale than that which applied to the two named comparators. Being on a lesser pay scale is not in itself contrary to the provisions of the Act. What would be contrary to the Act is if the higher salary scale was paid to a group of predominantly male workers on the one hand and that the lesser scale was paid to a group of predominantly female workers on the other hand who were engaged in like work or work of equal value at the relevant time.
Both sides have agreed that this is not a case of direct discrimination within the statutory meaning of that term. Accordingly to ground a case of indirect discrimination the Complainant must show that, at the relevant time, “an apparently neutral provision, criterion or practice” was in place that “put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.”
The Complainant submits that the Court should refer to the gender composition of the respective grades at the time the Blue Book was put in place to determine if there was a “provision, criterion or practice” in place that, whilst apparently neutral in nature, put persons of one sex at a particular disadvantage compared to persons of the other sex. On the basis of this information the Complainant submits that the Court must conclude that the salary scales indicate a gender bias that was sufficient to shift the burden of proof to the Respondent.
The Court cannot accept this view. Even if the complainant could establish that the scales were originally gender based, that, of itself, is not sufficient to establish a prima facie case of discrimination within the statutory meaning of that term.
In order to establish a prima facie case the Complainant must identify the “provision, criterion or practice” that is complained of and that she or he alleges disproportionately and adversely affects her or his gender.
He or she she must present credible evidence to the effect that that would indicate that the provision, criterion or practice continues at the time the complaint is first made ,l and that it adversely affects the Complainants gender
Showing that the comparator grade was at one stage in history gender biased does not meet the criteria set out above and required by the Directive and the Act. The bias and or the impugned provision, criterion or practice must be discernable, either directly or indirectly, at the time the complaint is first made to the relevant Tribunal or Court. As the Court has stated, in equal pay claims statistical evidence showing a gender imbalance between the complainant grade and the respondent grade in the three year period prior to the claim being made will be considered.
From the figures presented by both parties to the Court the gender composition of the comparator grade at the time the claim was submitted to the Tribunal was as follows: -
Table 3Year 2006 %Female 48.2 % Male 51.76
From these figures it does not appear that this amounts to direct or indirect evidence that there was a “provision, criterion or practice in place thatput persons of one sex at a particular disadvantage compared with persons of the other sexin accessing the grade.
- Table 4 sets out the gender composition of the comparator grade for the three years prior 2006.
- Table 4
- Year
2003 2004 2005 - % Females
49.4 47.8 47 - % Males
50.6 52.2 53
Whilst at no point over that period did the number of females in the grade exceed the number of males, there is no basis on which the Court could find that it was predominantly male in nature. The Court therefore finds that the comparator Grade was not, at the relevant time, predominantly male.
The Court must consider whether the gender composition of the Comparator and Complainant grades at the time the Blue Book came into being is relevant in this case. The Court is of the view that, whilst it is clear that the gender composition of the respective grades, at that time, was predominantly male and female respectively, this situation changed over the intervening years and was not the case at the time the Complainant commenced her claim under the Act or in the three years prior to that time.
As times passes circumstances change. Something that was discriminatory in the past may not be in the present or the future and vice versa. Inherent in the Directive and the legislation is a provision that an employer can take steps to eliminate a discriminatory provision, criterion or practice that disproportionately disadvantages one gender . Where such steps have been taken it would not seem consistent with the purpose of the Act or the Directive for a claim to succeed on the basis that a grade scale, though not now discriminatory, was at one time in history. In the instant case it is clear that any historic discrimination which may have existed has long since disappeared and it is for individuals as individuals to decide whether to enter psychiatric nursing or general nursing.
The Court takes the view that, whilst the historic origin of a salary scale may be an important factor in explaining the background to a particular case, any particular complaint of discrimination must be assessed at the time the complaint is submitted The Complainant has failed to establish that any such discrimination existed at the time the complaint was made.- Table 4
Determination:
The Court determines that the complainant has failed to establish a prima facie case of discrimination. It upholds the decision of the Equality Officer and rejects the appeal.
Signed on behalf of the Labour Court
Brendan Hayes
9th February 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.