DEC-E2012-009- Full Case Report

The Equality Tribunal

Employment Equality Acts 2000 to 2011

EQUALITY OFFICER'S PRELIMINARY DECISION
DEC-E2012-009

Parties

248 Named Complainants
(Represented by Irish Nurses and Midwifes Organisation)

AND

Health Service Executive
(Represented by Corporate Employee Relations)

File references: EE/2008/465, EE/2008/730, EE/2009/073-087, EE/2009/092, EE/2010/671

Date of issue: 30 January 2012

Keywords:
Employment Equality Acts - Gender - Equal Pay - Indirect discrimination - Prima Facie case.

1. DISPUTE

1.1 This dispute concerns an equal pay claim by 248 Named Complainants who are Assistant Directors of Public Health Nursing that they performs 'like work' in terms of section 7 of the Employment Equality Acts 1998-2008 with a number of named comparators who are Assistant Directors of Nursing, Mental Health and that they are therefore entitled to the same rate of remuneration as 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).

1.2 The complainants referred claims to the Director of the Equality Tribunal on 11 July 2008, 7 November 2008, 2 February 2009, 5 February 2008 and 8 September 2010. On 27 May 2010, in accordance with his powers under section 75 of the Acts, the Director delegated these cases to Tara Coogan, an equality officer for investigation, hearing and decision in accordance with the Acts. A preliminary enquiry was held on 1 October 2010 following which both parties were requested to make submissions in relation to 'like work' as set out in section 7(1) of the Acts and to agree a sample group of comparators for work inspection purposes. Submissions were received on 26 November 2010 and 6 December 2010. A sample of comparators was agreed on 26 February 2011. A Labour Court recommendation in Buckley v HSE (EDA113) - a case decided on similar facts as argued by the complainant - issued on 9 February 2011. Comments in relation to same were sought from the complainants and the respondent. A hearing into a preliminary matter was requested by the respondent and was scheduled for 12 October 2011. At this second hearing it was submitted on behalf of the complainants that the Labour Court had erred in its interpretation of law relating to equal pay cases. The complainants were not in a position to elaborate on this matter, citing a heavy work load, and suggested that they may be in a better position in 3 or so months to do so. The respondent objected to this and pointed out that the complainants could have appealed the Labour Court decision. The Tribunal was invited to issue a preliminary issue in the matter.

2. PRELIMINARY ISSUE

2.1. Facts:

2.1.1. The complainants are employed by the respondent as Assistant Directors of Public Health Nursing whereas the 80 named comparators are employed by the respondent as Assistant Directors of Nursing, Mental Health Services. The complainants contend that they perform "like work" with the named comparators and that the reason why their pay scales are lower than those of the comparators is significantly because of the complainants' gender.

2.1.2. The respondent disputed these claims stating that the complainants do not perform "like work" with their comparators. It was submitted that the work carried out by the comparators is of greater value in terms of responsibility and requirements of the job and that there are objective reasons in line with section 19(4)(b) of the Acts for the differences in the pay. The respondent refuted that the complainants have established a prima facie case of indirect discrimination as required by section 85A.

2.1.3. The Assistant Director of Nursing, Mental Health salary scale was determined under the Proposals for Agreement on the Pay and Conditions of Nurses as provided for under the Agreement for Pay incorporated in the Programme for Competitiveness and Work (hereafter "Blue Book Agreement") dated 23 September 1996. It was submitted that the salary scales were negotiated on behalf of all Assistant Directors of Nursing, Mental Health regardless of gender.

2.2. The Law

2.2.1. The Labour Court stated in Irish Aviation Authority v Irish Municipal, Public and Civil Trade Union (No DEP993): "In this case, the difference in remuneration between the claimants and the comparators derives from the grading structure operated by the respondent. Therefore a case of direct discrimination does not arise." I am satisfied that the claims before me are based on grading structures operated by the respondent. I am therefore satisfied that I this is an investigation into a claim of indirect discrimination only. Accordingly to ground a case of indirect discrimination the complainants 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."

2.2.2. It is important to note that the Labour Court in HSE v Buckley (EDA113) clearly stated that it does not accept that even if pay scales were originally gender based, that, of itself, is 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 complainants 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. The complainants 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, and that it adversely affects the complainants' gender.

2.2.3. Showing that the comparator grade was at one stage in history gender biased does not meet the criteria set out above and is required by both the Directive and the Acts. 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.

2.2.4. The UK Court of Justice in Enderby v Frenchay Health Authority, C-127/92, [1991] IRLR 43, 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."
This was interpreted by the Labour Court in the Irish Aviation Authority case, as:
"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. 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."

2.2.5. The gender breakdown of the complainants' grade is 100% female. I note that the respondent contended that the comparators' grade is not predominantly male and the complainants are therefore unable to establish a prima facie cases of indirect discrimination. The respondent provided statistics which showed the gender breakdown of the comparator group at the date of the claim, from Dec 2005 to Sept 2010 :

The complainants did not dispute these figures, which show that the comparator group was not predominantly male at the 'relevant time' under section 19 (2) of the Acts.

2.2.6.The complainants also contended that the 'relevant time' that I should consider is the date when pay and grading structures for all nurse management grades was established, which they say is at the 1995/1996 collective agreement known as the 'Blue Book Agreement'. They submitted statistics which showed that at this time the gender breakdown was 66% male and 34% female in 1995, 68% male and 32% female in 1996, 45% female and 55% male in 2000 and 38% female and 62% male in 2001. The complainants submitted that these gender breakdowns satisfy the criteria set down in the Enderby case that the job in the comparator group is carried out "predominantly by men". The Labour Court determination in Midland Health Board and South Eastern Health Board v The Irish Nurses Organisation (DEP051), stated that: "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". Thus, in order to succeed in their claim a complainants 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. I must be satisfied that the statistical information indicates that a prima facie case of indirect discrimination was occurring in June 2005. The undisputed figures from June 2003 onwards show an approximate 50:50 gender breakdown for the comparator group. This clearly cannot be taken to be predominantly male.

2.2.7. It was submitted on behalf of the complainants' that the Tribunal is not entitled to decide, without the completion of appropriate work inspections, whether or not the complainants' could establish a prima facie case of indirect discrimination. The complainants' relied on the Labour Court Determination in the case of Department of Justice, Equality and Law Reform v 28 Named Employees (EDA0719). It was submitted on behalf of the complainants that a simple statistical analysis of the two grades, viewed in isolation at a particular point in time, could not appreciate the complexity of the issue. It was submitted that only by having regard to all material, legal and factual matters of the case, including the collective agreement, could this Tribunal find a prima facie case of indirect gender discrimination. I find that this view is clearly unsupportable in circumstances where the Labour Court did not allow the appeal in Buckley.

2.2.8. Having considered the submission in relation to this matter, I cannot find in favour of the complainants' argument for a work inspection in this case. I have been provided with no facts supporting an inference that there is an apparently neutral provision, criterion or practice in place. It is clear that since the comparator grade has consisted of a similar number of men and women since April 2003 and therefore an argument that the comparator grade is 'predominantly male' cannot be sustained. While I accept that the comparator grade in the late 90s was two-thirds male, time has intervened and it is clear that larger numbers of women have chosen to enter into nursing roles in the mental health area. While I note that there is an argument that this Tribunal ought to be in a position to tackle historic discrimination I do not find that I have jurisdiction to do so. I find that while it is clear that the parties may have had a legitimate case in the late 90s, time and events have rendered the issue of these proceedings moot. A decision as to whether or not there was gender discrimination in 1995/1996 in relation to these pay scales would and could not be of any practical significance to the complainants. I say this, because even if such a situation could be established, there is no remedy available. I find that section 19(2) of the Acts is crystal clear in relation to what constitutes relevant time in relation to an equal pay claim. I note the Labour Court's conclusion in HSE v Buckley (EDA113) which states:
"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".

2.2.9. It was also argued that as a Director of Public Health Nursing had succeeded in her equal pay claim against the respondent and accordingly the salary of the Director of Public Health Nursing was now commensurate with that of the Director of Nursing, Mental Health, then the salaries of the grades of those who report to them ought to be the same also. I am entirely satisfied that such an argument is not a matter for this Tribunal.

3. DECISION

3.1. I conclude my investigation into the above complaints and make the following decision in accordance with section 79(3) of the Acts:

3.2. I find that the complainants have failed to establish a prima facie case of discrimination in relation to equal pay. Therefore these complaints taken on the gender ground fail.

_______________
Tara Coogan
Equality Officer
30 January 2012

APPENDIX A

Complainants included in this decision:

- Breda Farrell
- Mary McDermott
- Joyce Ormsby
- Mary G. Hartford
- Teresa Murphy
- Paula Dunne
- Jean Whelan
- Lena Wilson
- Bridge Teresa Farrell
- Bridget Considine
- Clare Farrell
- Mary O'Neill
- Yvonne Fitzsimons
- Mary Kelly
- Joanne Jeffries
- Patricia Garry
- Brigid Heery
- Angela Kennedy
- Mary Mahon
- Bernadette Hudson
- Aideen Kearns
- Carmel Murrin
- Aine Mooney
- Ann Gill
- Deirdre Kelleher
- Mary Murphy
- Margaret O'Donovan
- Brid McKenna
- Eilis Drum
- Barbara Goldsmith
- Mary O'Keeffe
- Pauline Scanlon
- Peggy Duggan
- Michelle Corcoran
- Mary Goan
- Regina Reynolds
- Ann Lynott
- Mary Prendergast
- Geraldine O'Connor
- Eileen Grehan
- Eimear McAulife
- Eleanor Hardie
- Anne Harte
- Catherine Whitty
- Irene Fegan
- Carmel Earls
- Catherine Fenton
- Martha Kennedy
- Margaret Burke
- Sheena McKinney
- Yvonne O'Regan
- Anne O'Reilly
- Bernadette Finnehan
- Bernadette Larkin
- Martha Kennedy
- Denise Wyer
- Kathleen Delaney
- Sadie Tierney
- Mary Wright
- Jacinta Joyce
- Margaret Molumby
- Deirdre Molloy
- Ann T. Winters
- Maura Belton
- Mary Henry
- Bernie Gavin
- Ann Gerety
- Carmel McGoldrick
- Joan D'Arcy
- Mary Gilroy
- Meta McCormack
- Bernie Connolly
- Siobhan McCormick
- Maura Lynam
- Cora Magee
- Grainne Coogan
- Maureen Joyce
- Catherine Smith
- Katherine Broderick
- Angela Clarke
- Patricia Leahy
- Marie Backwell
- Bernie Landy
- Agnes Durkin
- Margaret Hynes
- Catherine McBride
- Mary McGroarty
- Bernie McNulty
- Anne McCallion
- Marian Skelly
- Eileen O'Hanlon
- Mary White
- Una Duffy
- Mary Waters
- Noreen Goonan
- Helen Browne
- Anna Madden
- Brid Quinn
- Lisa Moloney
- Mona Monagan
- Marilyn Kelly
- Breda McCarthy
- Annette Irving
- Anne Marie McDermott
- Ann Boland
- Edel Deane
- Catherine Lavin
- Anne Nixon
- Melissa Collins
- Melissa Queenan
- Fiona Quinn
- Patricia McDonnell
- Breda Geary
- Anne Moloney
- Mary Harvey
- Grainne Ryan
- Niamh Keane
- Anne O'Brien
- Majella Mc Mahon
- Margaret Neylon
- Teresa Carey
- Mary O'Dwyer
- Mary Shanahan
- Anne Woulfe
- Gerardine Keary
- Cathryn Ryan
- Ellen Browne
- Patricia Magner
- Marie Riordan
- Mary Gillen
- Jane Hayes
- Josetta Ryan
- Anne Delahunty
- Marian Kelly
- Jackie Gibson
- Enda Hayes
- Lisa McGeeney
- Helen Rouine
- Eleanor Buckley
- Siobhan O'Brien
- Cora Williams
- Geraldine Murray
- Elizabeth Mansfield
- Denise McCarthy
- Jane Ward
- Betty Burke
- Maureen Roche
- Margaret O'Reilly
- Valerie McCarthy
- Esther Martin
- Margaret Atkins
- Anne Marie O'Sullivan
- Josephine Murphy
- Brenda Golden
- Joan Downey
- Lelia Kenny
- Sheila O'Reilly
- Mary O'Mahony
- Mary O'Flynn
- Mary O'Brien
- Janette Kelly
- Brigid Daly
- Margaret O'Regan
- Margaret Twomey
- Rosemarie Perkins
- Gemma O'Donovan
- Maura Dineen
- Anne Corridan
- Mary O'Sullivan
- Geraldine Missorici
- Mary Harty
- Siobhan Gallagher
- Elsie Moore
- Noreen Reidy
- Brenda Conway
- Mary Guider
- Teresa Griffin
- Margaret Fogarty
- Patricia Cleary
- Mary Doyle
- Alacoque Farrell
- Therese Farrell
- Eilish Whelan
- Marie Rafter
- Lily Hanton
- Maura Murphy
- Nolliag McCarthy
- Kathleen O'Sullivan
- Fiona McKeown
- Jean O'Keeffe
- Ursula Murray
- Monica Ryan
- Mary Fennell
- Breda Ryan
- Edel Conway
- Phil Mackey
- Mary Syron
- Anne Greally
- Carmel Buckley
- Anne-Marie Slavin
- Barbara Bolger
- Fiona Collins
- Ita Elliott
- Greeta (Nora) Power
- Mary Powell
- Jennifer Bollard
- Violet Hayes
- Syvlia Jenkinson
- Stephaine Cullinan
- Bernadette Galvin
- Olive Sheehy
- Ann Martin
- Marie Farrell
- Eilish Flanagan
- Esther Martin
- Mary Callinan
- Margaret McNamara
- Eileen Carey
- Margaret Gilmartin
- Catherine English
- Brid Brennan
- Elisabeth Healy
- Erin Scanlon
- Mary Mimnagh
- Paula McCall
- Teresa Crosby
- Ann Marie Quigley
- Margaret Harty
- Maria Durnin
- Sandra Graham
- Deirdre King
- Geraldine Murphy
- Kathleen Griffin
- Angela Nolan
- Deirdre Kavanagh
- Muireann Quinn
- Moira O'Reilly
- Margaret Carney
- Jackie Austin
- Fiona McDonnell
- Frances McHugh
- Una Dee Hogan
- Deirdre O'Rourke
- Tammy O'Leary
- Dolores Gallagh
- Mary Sheahan
- Joanna McCarthy
- Catherine Gibbs