EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-142
PARTIES
Dr Bridin Cannon
(Represented by Irish Medical Organisation)
And
Health Service Executive
(Represented by Ms Niamh McGowan B.L., instructed by Arthur Cox)
File Reference No: et-156202-ee-15
Date of Issue: 25th October 2016
1 DISPUTE
1.1 This dispute concerns a claim by the Complainant that she was discriminated against by the Respondent in relation to her employment on civil, age and family grounds contrary to Sections 6(2) and Section 8 of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), owing to the Respondents interpretation of a collective agreement concluded in June 2003 on no further recruitment of Area Medical Officer grade. In this case, the Union contended that operation of an apparently neutral provision, criterion or practice by the HSE has caused an indirect discrimination against Dr Bridin Cannon in the context of this agreement.
1.2 The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 13 May, 2015. On 5, May, 2016, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Patsy Doyle, an Adjudication / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a hearing to address the preliminary issue of time limits on 24 May, 2016, where both parties were represented.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015
Background to the Dispute
1.4 The complainant registered as a Medical doctor in 1983 and worked in a number of settings until she commenced employment as an Area Medical Officer (AMO) in September, 2002.She achieved permanency by competition in May 2003. She spent some time as acting Senior Area Medical Officer (SAMO) for 11 months in total across different sectoral areas during 2004.
1.5 The complainant submitted a historical context on the evolution of the Senior Medical Officer Grade in the context of direct negotiation at the Labour Relations Commission in 2003.
AMO Cessation of grade going forward, retention of current servers’ x 86
SAMO - Cessation of the grade, replaced by Senior Medical Officer (SMO)x54
PMO New grade of Principal Medical Officer (PMO)x 10, one per Health Board area
There were agreed procedures for filling the new positions. A single competition was to take place before September, 30 ,2003 and the agreement provided for a joint Union/ Management group to oversee the implementation of the process.
1.6 The complainant submitted that the operation of the resultant agreement by the HSE has given rise to circumstances whereby experienced Doctors, such as the complainant, have found themselves in an anomalous position of being “stranded below the basic grade of entry into their medical specialty”. This situation is contrary to the intention of the Agreement and contrary to the principles of fairness. The complainant contended that had she been younger and entered the community health medical service post 2003, she would have been spared the penalisation that occurred in her case. She submitted that it was her family and civil circumstances that militated against her accessing a position sooner. This has been keenly felt by the complainant as she has engaged in training Doctors who entered the service as direct entry SMO, thus overtaking her grade.
1.7 In September 2004, the complainant applied for the new role of SMO and was informed on September 29, 2004 that her application had not been considered due to her not fulfilling the requirements for the position based on a stated criterion.
At this time, she held:
· Higher Diploma in Immunology
· First of two parts of Membership of Royal college of Physicians
· MA in Healthcare Management
And was in the process of completing an M.Sc. in Epidemiology, commenced 2002.
The complainant did not receive any explanation or clarification on lack of equivalence between what qualifications she held and those the HSE sought at that time.
1.8 In particular, the complainant was aggrieved that her Masters in Healthcare Management , through which she had completed a dissertation on “ Study of Demand /need for flexible training at Senior House Officer level for Mothers in Irish medicine” did not satisfy the requirements and wanted the hearing to note her invidious position as a lone parent of three children who had deferred training because of her primary carer status .She was not afforded an appeal on her exclusion from eligibility for competition for the SMO at that time . The complainant also contended that the recruitment practice adopted by the HSE in the South centered on a casualised system of recruitment to the grade of SMO, via “sessional doctor” model did not assist in the formation of a proper pathway to promotion.
Prior to 2008, the Masters in Public Health and MSc. in Community Health were only available in Dublin, none of the other educational pre requisites were open to her either.
1.9 On August 25, 2005, the Union” highlighted the number of AMO grade working within the system with 20 /30 years’ experience and the lack of consideration afforded to these doctors in respect of eligibility for SMO appointment noting the qualifications criteria “with the HSE. They sought some relaxation of the strict criteria. The complainant competed in a 2008 competition for an SMO position and was paneled 4th, but not appointed. She was overtaken by a Doctor from the “sessional “group who was paneled third.
The complainant submitted that individual representations were not advanced on her particular case, rather the claim for rectification of the anomaly was ongoing via Council Meetings and submissions to senior managers at the HSE. The complainant also submitted for regularisation of her position via circular HR 17/2013 and was unsuccessful in her appeal in November 2015.
1.10 The complainant submitted that the decision to set the qualification of Masters in Public Health, or equivalent as an essential qualification for the post of Senior Medical Officer in Community Health served as a barrier in preventing doctors from applying for promotion. They posed the question whether introducing this criterion was a proportionate means of achieving a legitimate aim? They cited the authorities of Homer V Chief Constable of West Yorkshire Police [2012] UKSC 15, in particular the judgement of Lady Hale in Stephen Games V University of Kent UK EAT/0524/13/DA, in support of the contention of indirect discrimination.
1.11 The complainant submitted that the grade of AMO had been left behind and there was no provision for a transitory agreement within the 2003 agreement, to take account of the need to subsume the AMO to SMO in a structured fashion.
In 2008, a further claim was made by the IMO:
“The IMO has made a claim on behalf of the remaining AMO’s employed in the HSE for progression to the salary scale of SMO grade “
The complainant told the hearing that she had competed in a national competition for SMO in 2015 and had been appointed on a specific purpose contract January 2016 -January 2017 on a .5 wte basis. She submitted that there was no certainty of tenure in this position.
1.12 Time Limits
The complainant submitted that there were separate manifestations of the same disposition to discriminate and these manifestations could occur quite some time apart, Dept. of Health and Children V Gillen and Mary Dempsey V NUI, Galway applied.
The complainant submitted that Section 77(5) of the Acts allows a complaint to proceed on the basis that the “most recent occurrence” of the discrimination alleged took place within six months of the complaint. Dr Cannon contends that the ongoing refusal of the HSE to consider re-grading her to the grade of SMO brings an immediacy to “the most recent occurrence of discrimination “She contended that every time she is paid her salary, the discrimination is renewed.
1.12 Both parties have met on numerous occasions since 2003 to attempt to resolve this issue, and that the complainant has been compelled to initiate this case due to the intransigence of the HSE in not expediting a solution to this matter.
2005 Rejection of claim for automatic conversion of AMO – SMO
2006 Re raised as an issue
2007 LRC
2008 -2011 Agreement that HSE would conduct an internal review to ascertain the cost of regrading a portion of remaining AMO – SMO grade.
2014-2015 Agreement that another review be conducted.
1.13 The Union contends through its interpretation and operation of the 2003 LRC Agreement , the HSE has indirectly discriminated against the complainant on the grounds of her age , civil and family status and this discrimination remains ongoing .The complainant has been confined to a salary scale and level of professional status below those of younger colleagues , contrary to the provisions of the Equality Acts and also by limiting her career prospects by virtue of penalising her civil and family status .
The Union asked the Equality Officer to consider the application of:
St James Hospital and Dr Kevin O Flynn, PTW/16/1, Labour Court case, on the correct cognisable period covered by the claim under the Protection of Employees (Part Time Work) Act, 2001.
And
HSE and John Mc Dermott [2014] IEHC 331 on the submission of a complaint under the Payment of Wages Act ,1991 within a six-month time limit in respect of a particular complaint.
2 Respondent Position
2.1 The complainant is a medical doctor employed by the respondent in the Southern region as an Area Medical Officer since September, 2002.The respondent referred to the origin of the position of Senior Area Medical Officer (SAMO).
In or around 1985, the then Minister for Health directed that the qualifications for the office of SAMO were to include a degree or diploma in public health or equivalent, in addition to a requirement to be a registered medical practitioner with at least five years post qualification experience in the practice of the medical profession, as well as adequate experience in the Health services
. In 1988, the then Minister for Health established a working party for the purposes of defining the role of community medicine in the health services in the medium to long term. This group recommended that all applicants for SAMO should hold as a minimum, Masters in Public Health or Part 1 examination of the faculty of Community Medicine. On March 12, 1999, the qualifications necessary for the post of SAMO were approved by the Minister and were broadly similar to the qualifications set out in 1985.
In April 2002, the Brennan report recommended the separation of community medical services from public health services and the introduction of the three-tiered structure referred to in the complainants’ submission. Circular 23/2004, raised on 13 May 2004, sanctioned the implementation of the SMO grade with immediate effect. There are no restrictions in respect of age, civil status or family status provided for in the eligibility criteria.
The respondent submitted that the issue is an Industrial Relations issue, yet the Union have not taken up the respondents offer to have the collective issue considered by the Labour Court as reaffirmed in National Agreements.
The respondent contended that the current claim was raised with a view to placing pressure on the HSE to arrange to upgrade the remaining 60 AMO posts, which is precluded by the “cost increasing claim mechanism of the Croke Park and Haddington Rd Agreements “. Promotions were also prohibited under FEMPI legislation. The respondent disputed that reviews were ever agreed or executed in either 2008 or 2014.
2.2 The complainant applied for an SMO post in November 2014, she was placed 12th on the panel and formally appointed to the position in January 2016.
2.3 Locus Standi
Immediately preceding the implementation of the 2003 agreement, despite her age, civil status and family status the complainant actually undertook and completed (in 2007) an equivalent Masters in Epidemiology which rendered her eligible for competition for SMO position. The complainant was aware of her eligibility to compete. There were three national competitions in the intervening years: 2004,2005and 2009. There were further competitions in 2013,2014 and 2015.The first time a national competition for SMO posts was held particular to HSE South was in 2014. This was the sole competition which the complainant participated in.
The respondent submitted that the complainant cannot show that she was negatively affected by the criteria imposed. Even if she were not eligible for an SMO post at the time when the qualification requirements were adopted in 2004, she has no standing to bring such a complaint in 2015, when she clearly meets the eligibility criteria and has done since 2007
2.4 Limitation Period
The respondent submitted that the claim is statute barred. The date of 27 April, 2015 was furnished by the complainant as the most recent date on which the incident of discrimination occurred but had not elaborated on the reason why she selected the date. The Ministerial Order (Circular 23/2004) imposed the educational qualification standards for the post of SMO. These events occurred eleven years before the equality proceedings were instituted and cannot proceed as the claim is statute barred.
In addition, the complainant did not refer to any discriminatory act which affected her within the 6 months prior to the bringing of her claim on 13 May 2015, such as would entitle her to pursue a claim based on a continuum of discrimination.
The complainant did not apply for promotion during the relevant period, she was not deemed ineligible for promotion and she was not denied an opportunity for promotion for failing to comply with the educational qualification standard set.
2.4 The respondent submitted that County Cork VEC V Hurley EDA 1124 had authority that a discriminatory regime, rule, practice or principle relied upon must have a clear and adverse effect on a complainant. The respondent submitted that the complainant in the instant case is not in a position to discharge this burden as she held the requisite qualifications and has been eligible to apply for the position since 2007. In addition, the complainant had been successful in her application for an SMO post more than six months before she brought her complaint. The complainant applied for an SMO position via a National competition in 2014 and was paneled at No. 12 out of a 21 candidate listing and was appointed to the position in January 2016.
The respondent disputed that the HSE refusal to regularise the complainant in the role of SMO on initial application under HR circular 17/2013 and on appeal to an Arbitrator constituted an immediacy capable of being encompassed within the statutory time limits in this case. They submitted the Arbitrator report dated 27 November, 2015.
“ …. The facts pertaining to your appeal appear to relate to grading rather than consideration of being in an Acting Up capacity and therefore is relevant to examination by job evaluation. In this regard, the HSE on the basis of an understanding reached under the LRA will be re-establishing access to a Job evaluation process in the New Year …….”
The respondent drew an analogy to the recently decided Employment equality case of Dr Kevin Brogan and HSE, DEC-E2016-078 dated 19 May, 2016. This was a case involving claims for direct and indirect discrimination on age grounds within the job title of AMO in the context of a reported exclusion from the position of SMO. The Adjudicator /Equality Officer found against the complainant.
“Having regard to the foregoing, I cannot accept that any of the acts complained of which occurred after the incident in 2005 can be regarded as part of a continuum for the purposes of section 77(5) of the Acts. In the circumstances, I find that the present compliant fails to comply with the time limits prescribed in section 77(5) of the Acts. Accordingly, I find that I do not have jurisdiction to investigate the present complaint “
2.6 The respondent disputed the relevance of O Flynn and Mc Dermot as these cases were based on different legislation.
3 Findings and Conclusions of the Equality Officer on the Preliminary Issue of Time limits.
3.1 Section 79(3)(A) of the Acts provides:
“If, in a case which is referred to the [Director General of the Workplace Relations Commission under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:
(a) whether the complainant has complied with the statutory requirements relating to such referrals,
(b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,
(c) whether the complainant is an employee, or
(d) any other related question of law or fact,
The Director General of the Workplace Relations Commission may direct that the question be investigated as a preliminary issue and shall proceed accordingly.”
I have investigated the preliminary issue in accordance with Section 79(3)(A).The respondent has submitted that the complaint is out of time. In deciding this matter, I must be satisfied that the complaint is properly and validly before the Tribunal, now Workplace Relations Commission. I have carefully considered all submissions and evidence offered and I will commence with some primary observations.
3.2 The complainant has submitted her contention that backdrop to a collective marginalisation of the AMO grade followed in the wake of the 2003 agreement. She submitted that she lost out on access to the SMO grade on grounds of age, civil status and family. She submitted that she was penalised by the idiosyncratic entry of “sessional “doctors into the SMO pool, thus frustrating her access to the SMO grade. The lack of progress on her attainment of the SMO position was further complicated by the refusal of the respondent to process her claim for regularisation. The Union, on behalf of the complainant contended that the act of ongoing less favourable treatment served as a continuum and was properly provided for in Section 77 (5) and (6)(A) of the Acts. The Union pointed to the central qualification set down by the respondent for access to SMO, was effectively out of reach for a large number of “would be “candidates of which the complainant was one. The Union contended that a lack of real progress between the parties on enabling the former AMO group to attain the SMO promotional outlet, served as a frustrating issue. They contended that the case must be allowed to run. The complainant made it clear that she had not lodged her claim under the “ collective agreement “ Section 86 and 87 provisions provided for on the complaint form.
The respondent contended that there had been a substantial increase in the numbers in the SMO grade from 53 to 83 up to 2015 and a decrease in the AMO headcount from 249 to 69. The respondent argued that the events complained of centered on an agreement forged between the parties 11 years before the instant complaint was made. They disputed that the complainants access to SMO was in any way impeded given that she had obtained the key qualification in 2007 and had competed for the SMO position in 2008 and 2014, and on both occasions being deemed appointable and paneled .They contended that the complainant could not point to any discriminatory act which affected her within the six months prior to the bringing of the claim which would enable her to rely on the continuum argument provided for in 77(6)A of the Acts and chose to rely on the authority in Hurley . The respondent argued further that the complainant was already appointed to the position of SMO from January 2016. The respondent submitted that the entire issue of transition from AMO to SMO had its roots in an Industrial Relations claim and asked the Adjudicator to recognise it in that light.
3.3 The claim was received by the Equality Tribunal on 13 May 2015 and related to alleged discrimination which occurred in the period from June 2003:
“My complaint arises out of the interpretation by the HSE of a collective agreement concluded in June 2003.In particular, my complaint refers to the clause in the agreement stating that “there will be no further recruitment of AMO. Prior to the agreement, AMO had been the entry grade ….
As a result of the HSE’s interpretation of this clause, I have found myself in the anomalous position of being employed in a grade below the entry grade into my medical specialty, while other younger colleagues, enter at a higher grade level. Because of my civil and family status as a lone parent I was practically unable to attain the qualifications deemed necessary for the post “
The most recent date of discrimination was submitted as 27 April, 2015. A reference was made by the complainant that discrimination was repeated every time she was paid.
3.4 Section 77(5) of the Act provides that a claim must be presented within six months of the date of discrimination complained of or where discrimination is continuing, the date of the last occurrence. Section 77(5)(b) of the Act provides that where reasonable cause is shown for a delay in presenting a claim under the Act, the six-month time limit may be extended to a period not exceeding 12 months.
77 6A) For the purposes of this section—
(a) discrimination or victimisation occurs—
(I) if the act constituting it extends over a period, at the end of the period,
(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and
(iii) if it arises by virtue of a provision which operates over a period, throughout the period,
(b) a deliberate omission by a person to do something occurs when the person decides not to do it, and
(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—
(I) does an act inconsistent with doing it, or
(ii) the period expires during which the respondent might reasonably have been expected to do it.
3.5 The respondent submitted the application of the Adjudicator/Equality Officer Decision Brogan to the facts of this case. I would note that there are some differences in the profile of the complainants. In Brogan, the complainant was male and cited age grounds to ground his complaint. From my reading of the case, he had not competed for the position of SMO as there was a dispute on his understanding of the application on the central qualification. In the instant case, the complainant was acting in the position at the time the agreement was circularised in 2004. She was disallowed in the subsequent first competition in 2004 on qualification grounds. I find that I must follow the decision in Brogan by identifying this as the first instance of alleged discrimination in November, 2004.
The complainant went on to complete her qualification in epidemiology at Masters level in 2007 and was deemed appointable in 2008 when she was placed 4 on a panel. The next competition open to her, post moratorium in the South of Ireland was in 2014, in which she succeeded in being appointed on a one-year contract (specific purpose) in 2016. This is due to expire in January 2017 and the complainant is concerned about this. In her evidence to the hearing, she submitted that the “sessional” doctor grade had been paid at SMO level, an unfair anomaly, she felt aggrieved about.
3.6 In the Supreme Court case of County Louth VEC v Equality Tribunal [2016] IESC 40, a case on appeal from the High Court on the question of admissibility of complaints furnished outside the statutory time limits: Mc Kechnie J remarked:
Para 23. At the outset it is important to understand that both ss 77(5)(a) and (6A) are intended to capture quite different circumstances (Labour Court, 26th July, 2011)). Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision's more general meaning. In such a case the six-month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.
24. On the other hand, s.77(5)(a) of the 1998 Act deals with a situation in which there are a series of separate acts or omissions on the part of, say, an employer, which, whilst not forming part of a regime, rule, practice or principle (“regime or practice”), are sufficiently connected so as to constitute a continuum of discrimination. In effect, this deals with a situation whereby there are separate manifestations of the same disposition to discriminate (Bolger, Bruton and Kimber, Employment Equality Law (Dublin, 2012) at para. 16–47). In such a case, once a complaint is made within six months from the date of the last act or omission, all conduct found to form part of the continuum will be regarded as having occurred within time.
The Supreme Court remarked that the “six months “provision applies whichever provision is invoked.
3.7 In the instant case, the complainant submits that the events complained of form a continuum, yet a careful analysis points me otherwise. I accept that the hallmark of the Master programme as a pre-requisite for application for an SMO position proved an onerous burden. However, I agree with the respondent that the complainant surmounted this challenge in 2007, on completion of the programme. From that day forward, I note that she was panelled for the position in 2008, but not appointed. I accept completely that she and her colleagues raised the anomaly of the protracted period of their retention in the lower grade while being overtaken by the newly appointed SMO at Union Conferences and directly with managers of the Respondent. I am mindful that the complainant has an earnest belief that she worked at the functional level of SMO for many years but was not formally appointed until 2016. I find that this should be addressed in the IR forum as this level of perpetual unease does not augur well in employee relations. I note in particular the Arbitration report of Mr John Doherty dated 27 November, 2015 on a projected possibility for a job evaluation exercise. . However, I must return to the facts of this case.
3.8 The complainant submitted that the date of discrimination pertaining to the complaint was April 27, 2015. She was informed on June 26, 2014 that she had been panelled at No 12 on the national recruitment competition for SMO. This led to her appointment in January 2016.
Therefore, I cannot establish that the complainant was adversely affected by a prohibited act in the six months immediately prior to her complaint in May 2015. She was awaiting appointment, not impeded by the agreement. I cannot, therefore find that the complainant can rely on the provisions of S.77(6) A of the Acts in terms of continuum.
Neither can I identify a sufficient linkage between separate acts that would allow the acts complained of to form a continuum as provided for under Section 77(5) A) of the Act. The complainant confirmed at the hearing that there were no acts of discrimination within a 6 month period prior to the lodgement of the claim outside the reference to discrimination coinciding with each pay period . I cannot identify an act of discrimination highlighted within the time specified in the Act .Gillen, distinguished. I note the submissions on Mc Dermott and O Flynn. However, I find that the circumstances grounding both claims are very different and the question of the time limits were saved in accordance with the provisions of the respective Acts.
I, agree with the Adjudicator/Equality Officer in Brogan and deem the process of regularisation to be a parallel and distinct process separate to the case in hand .
3.9 I must conclude that the outer limits of six months must be observed in accordance with the direction in Louth VEC V Equality Tribunal ,
” Therefore treated as a condition precedent to the exercise of the Tribunals jurisdiction and cannot be stood down, save in accordance with the provisions of the Acts.”
I cannot establish that the time limits encompassed in the Act can be stood down in this case , nor can they be saved by the provisions of the Acts .
4 Decision :
4.1 I find that following a preliminary hearing of the case on time limits under Section 83 (3)A of the Acts, the complaint cannot succeed for want of jurisdiction on time limits .
Patsy Doyle
Adjudicator/Equality Officer
Date: 25th October 2016