EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012- 198
PARTIES
Theresa Darling, Orla McMorrow, Blanaid Quinn, Margaret McKenna, Jacqueline Stewart & Tara O'Donnell
(represented by the PNA)
-v-
HSE West
(represented by John O'Donnell Industrial Relations Officer)
File Reference: EE/2010/ 474-479
Date of Issue: 21st December 2012
Keywords
Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, Section 6(2)(a)- gender, Section 8 - conditions of employment, access to premium night shifts, Section 85A - burden of proof, Section 82 - redress.
1. Dispute
This dispute involves a claim by the complainants that they were discriminated against by the above named respondent on the gender ground, in terms of the Employment Equality Acts 1998-2011 and contrary to section 8 that Act in relation to their conditions of employment.
2. Background
2.1 The complainants referred complaints under the Employment Equality Acts to the Equality Tribunal on the 25th of June 2010 alleging that the respondent discriminated against them relation to their conditions of employment because they are assigned to the night duty roster which attracts a premium rate of pay less frequently than their male colleagues.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on the 2nd November, 2012 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainants 9th December 2010 and from the respondent on the 14th March 2011. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 27th November 2012.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainants are all staff nurses working in Sligo Mental Health in-patient services. There are 39 staff nurses in the unit, 19 male and 20 female. The unit consists of the female administration unit, the male administration unit and the special care unit. The complainants stated that they work in any of these areas during the day shift but they are not allowed to work in the male admission unit at night and 3 males and one female are always assigned to work in the special care unit at night. Male nurses do not work in the female admission unit on any of the shifts. They submitted that over many years the respondent rostered female nurses in a discriminatory manner. As a result of this rostering the complainants' state that they do not get as many night shifts which attract premium rates of pay as their male colleagues. They stated that they do a week of night duty every 12 weeks in comparison to the male nurses who get a week's night duty every 9 weeks. The PNA submitted that in 2003 that male nurses could be rostered for 6 weeks of night duty after every 6 weeks of day duty, whereas female nurses would do up to 19 weeks of day duty before being assigned to 6 weeks of night duty. Between 2003 and 2006 male nurses did approximately 26 weeks night duty in comparison to 13 weeks night duty for females. While to gap has closed over the years males can still accrue up to 18 weeks night duty in a 48 week period in comparison to females who accrue about 12 weeks night duty. It was submitted that the rosters were as a result of historic union agreements and several efforts have been made to change them. I was referred to the Decision of an Equality Officer Sheila O'Dea & others v Southern Health Board EE/6//1999 where the Equality Officer found discrimination in the allocation of premium night shifts to female nurses and went on to say:
On the basis of the foregoing, I find that the South Eastern Health Board did discriminate against Ms Sheila O'Dea, Ms Sheila Hallinan and Ms Nora O'Dwyer on the basis of their sex in terms of Section 2(a) and in contravention of the provisions of Section 3 of the Employment Equality Act, 1977.
I recommend that the Health Board make immediate arrangements to ensure that qualified male and female nurses have equal access to night duty postings. This should be done by ensuring that the ratio of male to female nurses allocated to night duty reflects as closely as reasonably practicable the ratio of male to female nurses available for night duty.
The PNA submits that the facts of the above case are similar to the case herein and state that the respondent has discriminated against the complainants on the gender ground by failing to correct the rostering system which provides male nurses with significantly more access to night duty which attracts a premium rate of pay. They request that the rostering system be changed to ensure that the ratio of female nurses to male nurses on night duty reflect as closely as is reasonably practicable the ratio of females and males available for night duty.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent's representative accepts that the male staff nurses got more night shifts that the complainants. However he disputes that the difference in the number of shifts allocated to males in comparison to the number allocated to females as put forward by the PNA. He said that it was custom and practice that a male nurse had to be on duty at all times in the special care unit and the male admission unit and only females worked in the female unit. He said that the current rostering system in the in patient units was put in place following union negotiations and the respondent has continued to negotiate with the unions in relation to the rosters and they have been unable to agree a solution. The respondent contends that the current rostering system was put in place to meet unions' requirements in respect of health and safety issues of its members and having regard to clinical and intimate needs of patients. The respondent concedes that this arrangement results in some difference in night shifts for males in comparison to females. The respondent denies that the roster discriminates against the complainants. The respondent submitted they acknowledge the findings of the Equality Officer in the above case EE/6/1999 and state that they have been in negotiations with the unions concerning the rostering for a considerable time and the matter has not been resolve. It is the respondent's intention to introduce a gender neutral roster in line with the recommendations of this case.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter for consideration is whether or not the respondent discriminated directly against the complainants on the gender ground under the Employment Equality Acts, and contrary to the provisions of Sections 6(1)(a), 6(2)(a) and 8 of that Act in the allocation of premium night duty rosters to the complainants. In making my decision in this case I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
Section 6 of the Act contains the general prohibition of discrimination. Section 6(1) provides:
6. -- (1) For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) a person is treated less favourably than another person is,
has been or would be treated in a comparable situation
on any of the grounds specified in subsection (2) (in this
Act referred to as the ''discriminatory grounds'') which --
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person --
6(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(a) that one is a woman and the other is a man (in this Act
referred to as ''the gender ground''),..............
and
8. -- (1) In relation to --
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective
employee and a provider of agency work shall not discriminate
against an agency worker.
.................
(4) A person who is an employer shall not, in relation to
employees or employment --
(a) have rules or instructions which would result in discrimination
against an employee or class of employees in
relation to any of the matters specified in paragraphs (b)
to (e) of subsection (1), or
(b) otherwise apply or operate a practice which results or would
be likely to result in any such discrimination.
(6) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
(a) the same terms of employment (other than remuneration
and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals and disciplinary
measures,
as the employer offers or affords to another person or class of persons,
where the circumstances in which both such persons or classes
are or would be employed are not materially different.
5.2 Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that he was discriminated against on the gender ground in relation to his conditions of employment. It is only when he has discharged this burden to the satisfaction of the Equality Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.
The Labour Court in the case of Cork City Council v Kieran McCarthy Det. No. EDA0821 applying the principles set out in Mitchell stated:
"Section 85A of the Act, as amended, now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be inferred it shall be for the Respondent to prove the absence of discrimination.
The test for applying that provision is well settled in a line of decisions of this Court starting with the Determination in Mitchell v Southern Health Board [2001] ELR 201. That test requires the Complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which he bears, his case cannot succeed.
The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts."
In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
5.3 The complainants' case is as set out above at paragraph 3.1. above and the respondent's case is set out at paragraph 4.1 above. In the course of my investigation of the complaint I note that the HSE accepts that there was an imbalance in the allocation of night duty postings between male and female nurses which resulted in male nurses having greater access to night duty postings and which attract a premium payment resulting in higher earnings for male nurses. It is clear from the evidence, that meetings have taken place and letters have passed between the parties in an effort to put a more equitable roster in place.
I note from the evidence that there are 3 areas where the complainants do day shifts. However they are not allowed to do night shifts in the male admission. The night duty roster is further restricted by the fact that 3 males and I female work in the special care unit at night. I further note that male nurses do not work in female admissions. The respondent submitted that there were agreements in place with the union in relation to health and safety issues and that male nurses should be on duty at all times in the special care units because the patients in this unit were more volatile. He said that the night can be a more problematic time that the day shifts. In an emergency an alarm goes off and staff that has been trained in relation to aggressive behaviour are nominated to attend to the emergency. The complainants submitted that they have all been trained in health and safety issues and if the alarm goes off in the event of an emergency they have to attend if they are the nominated person and female staff have to attend no matter what the emergency is. It could be either aggressive behaviour or medical emergency.
5.4 Having regard to the foregoing I am satisfied that the complainants have been treated less favourably than male nurses in relation to access to night shifts. I find therefore the complainants have established a prima facie case of discriminatory treatment in relation to their conditions of employment.
6. DECISION OF THE EQUALITY OFFICER.
(i) On the basis of the foregoing, I find that the respondent discriminated against the complainants on the gender ground in terms of sections 6(1) and 6(2)(a) in relation to her conditions of employment contrary to sections 8 of the Acts.
(ii) Under Section 82(1)(e) I order that the respondent to implement a new night duty roster to ensure that female and male nurses have equal access.
(iii) Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay. However I note that there has been a decline over the years in the gap between the number of premium night shifts the complainants do and the number their male colleagues do has narrowed considerably and I note that the parties' representative agreed that this was the case. My opinion is that the most important order is that the night shifts drawn up give equal access as far as practicable to the complainants in comparison with the male nurses. I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, order the respondent to pay each of the complainants €3,000 in compensation for the effects of the discriminatory treatment. This figure represents compensation for the infringement of their rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.
________________________________
Marian Duffy
Equality Officer
21st December 2012