Complainant

Respondent

Anonymised Parties

A Doctor

A Health Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00003685-001

05/04/2016

The complainant submits that she was indirectly discriminated against on the age grounds by the existence of a Legacy Transfer Policy (hereinafter referred to as LTP) and the failure of the respondent to promote the complainant because of indirectly discriminating against the complainant and a complaint pertaining to conditions of employment was withdrawn.

Taking into consideration all factors, I have taken the decision to anonymise this decision.

During this hearing, submissions were substantial with copious volume of documentation and oral evidence and, whilst I will not be referring to every event or reference every case law presented, I have taken into account all the submissions including oral and written made to me in the course of my investigation as well as the evidence presented at the hearing.

By way of background it is of note that in 2002 there was a reorganisation within Community Health under the Brennan Review. Prior to that, community health medicine had been staffed by Area Medical Officers (AMOs) and Senior Area Medical Officers (SAMOs).   The post of SAMOs required a Degree/Diploma in Public Health or equivalent and in 1988 a recommendation included inter alia that SAMOs should have a Masters degree in Public health.   As a result of the Brennan Review, the grade of AMO was to be retained and the grade of SAMO was to be replaced with the grade of Senior Medical Officers (SMOs). The role of SMO required a Masters/Diploma in Public Health or equivalent.

In 2003 following industrial action by community doctors, agreement (hereinafter referred to as the 2003 Agreement) was reached with the said doctors whereby it was agreed that there would be no further recruitment at AMO level, and that any new doctors wishing to pursue careers in Community Health Medicine would do so at SMO level, subject to the requirement of the Masters/Diploma in Public Health or equivalent which included being a member of the Irish College of General Practitioners which the complainant is.   In 2014 the complainant was successful at interview and ranked #16 on a panel for the position of SMO.

There exists 9 community health organisations (CHOs) across the country and in the complainant’s specific CHO, (hereinafter referred to as CHO_A), there exists a transfer policy which was established in 1971. This transfer policy applies to Counties X, Y and Z in CHO_A and employees in CHO_A may avail of a post that arises at their own grade within CHO_A through the LTP. If the post is not filled through the LTP, then the position is passed to the national panel.

Preliminary Issue #1

In response to the respondent’s preliminary issue that the complaint is statute barred as there have been no incidences of discrimination within 6 months of this instant complaint, the complainant submitted that she was only 24 hours out of time as the LTP had been used on 5th October 2015 to appoint somebody as an SMO in County X. The complainant made reference to the 2003 Agreement and the LTP established in 1971 and that she was discriminated against because of this LTP. It was also submitted that the LTP has been used for transferring other SMOs in 2008, 2010, 2013 and 2014. The complainant submitted that she regarded the time restriction as very unreasonable as the appointment of the SMO through the LTP took place on 5/10/2015 and that she had submitted her complaint on 5/4/2016.

Substantive Issue:

The complainant is on a national panel awaiting any SMO role that may arise. However, if any SMO post arises in one of the three counties covered by the LTP; priority is given to those already holding the position of SMO within CHO_A. This LTP is unique to CHO_A and covers three counties X, Y and Z and this LTP does not exist across the rest of Ireland.

On a regular basis available, SMO vacancies are filled from the LTP excluding the complainant as she is not considered at the existing grade of an SMO. The LTP had been used to fill SMO posts in in 2008, 2010, 2013, 2014 and 2015. The complainant submits that she has the same qualifications as SMOs and does the same work but she is discriminated against because of her age as the more senior SMOs are younger and they have priority over her on the LTP. The complainant initially cited as comparators Dr A1 and Dr B1 SMOs and later submitted that SMOs within CHO_A would be her comparators for this complaint. It was submitted that the complainant sourced her information regarding her comparator pool for a census and from data that is publicly available.

The complainant outlined that her research through her own census and data available nationally had confirmed that for September 2019:

The Mean age of 7 AMOs in County X and CHO_A is 62 years

The Mean age of 4 doctors on transfer panel is 42 years

The Mean age of 15 SMOs within CHO_A is 48 years

It was submitted that the national cohort of AMOs is significantly older than the national cohort of SMOs as nationally the average age of SMOs is 48 and nationally the average age of AMOs is 58. It was further submitted by the complainant that the age profile of the doctors on the transfer file was 42 years which is significantly younger than the complainant’s age of 54. The SMO who secured the role in 2014 has less experience than the complainant but yet this SMO is now the complainant’s line manager. Additional data from 2019 identified that there were a total of 150 SMOs broken up into the following age groups:

30-34: 3

35-39: 23

40-44: 29

45-49: 25

50-54: 28

55-59: 21

60-64: 18

65+:   3

The age profile of 17 AMOs across community healthcare organisations is :

Age

30-34: 0

35-39: 0

40-44: 0

45-49: 2

50-54: 6

55-59: 1

60-64: 6

65+:   2

The complainant submitted that a cohort of older doctors who are employed at the historic AMO grade have been denied all opportunities to be promoted because of the existence and application of the LTP which comprises of significantly younger doctors who transfer into County X.

Preliminary Issue #1:

The respondent submitted that the complainant is statute barred from proceeding with her claim as no incidences of alleged discrimination had occurred within 6 months of her submitting her complaint. Furthermore, the complainant had failed to establish any reasonable cause for not submitting her claim on time. The complainant had submitted in her letter of 7th February 2016 that her complaint was “less than 24 hours out of time” but it was submitted by the respondent that her complaint remained out of time.

Substantive Issue:

Without prejudice to the above, the respondent submitted that the Respondent refutes the allegations and submitted that the complainant had failed to provide primary facts on which she could rely on in alleging discrimination.   Furthermore, evidence given was that the work of AMOs and SMOs as provided for in the job description is different and requires a specific level of educational qualification that not all AMOs have.

The respondent submitted that nominating two comparators or alternatively a pool of AMOs and SMOs within a specific area of the respondent’s area without consideration of the full make-up of AMOs and SMOs indicate the complainant’s failure to establish a prima facia case. It is clear from case law that a comparator may not be based on an unrepresentative group. The respondent also submitted that the complainant meets the educational qualification standards required for the role of SMO and that she was placed #16 on the panel for promotion in 2014. The complainant has not expressed any interest in a post of SMO in a county other than County X and once she secures an SMO place she will be in a position to secure the same pay as SMOs.”

The respondent outlined that the complaints are spurious and that the complainant is being brought solely for the purpose of pursuing an IR agenda while avoiding engaging with the binding mechanisms set out in public service agreement for the resolution of industrial relation issues.

The complainant at the time of hearing was 54 years old and data from 2018 outlined that there are a total of 39 AMOS nationally with 31 AMOs working in community healthcare organisations. The age profile across community healthcare organisations is:

Age

30-34: 1

35-39: 0

40-44: 4

45-49: 4

50-54: 7

55-59: 4

60-64: 7

65+:   4

There are a total of 104 SMOs nationally with 88 working in community healthcare organisations. The age profile across community healthcare organisations is given below and would suggest that the age range of AMOs includes people across all the age brackets:

30-34: 4

35-39: 11

40-44: 22

45-49: 10

50-54: 12

55-59: 11

60-64: 14

65+:   4

Other AMOs of a similar age to the complainant have transferred out of their county and have come back again and the same process can apply to the complainant and the complainant has not set out any evidential basis for her apparent suggestion that younger doctors are in a better position to utilise the LTP.   All candidates who meet the educational qualification criteria are eligible for promotion or appointment to the SMO posts as they arise irrespective age. The complainant’s comparator pool does not meet the criteria of a suitable pool as set down by previous case law.

The complaint is out of time and the complainant has failed to establish a prima facia case in respects of her claims of discrimination

Preliminary Issue 1:

The respondent raises a preliminary issue that the complainant is statute barred from proceeding with her claim as it is was not submitted within 6 months.   The complainant accepted that her complaint was 24 hours outside the time limits but that such time lines were very restrictive. The complainant made reference to the 2003 Agreement and the LTP implemented in 1971 and that she was discriminated against because of this LTP.

Section 77(5) and 77(6) provides as follows:

(5) ( a ) Subject to paragraph (b) , 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 occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

( b ) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

  ( c ) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant ’ s notice.

Having reviewed the submissions I note that the complainant was placed #16 on the panel in 2014 and the last incident prior to this complaint, where the LTP was utilised for SMOs was 5th November 2015. The complainant submitted this complaint on 5th April 2016 and the complainant has not submitted any reason other than that the time lines are very restrictive. This however, does not explain and excuse her delay in submitting the instant complaint within the statutory timelines. I, therefore, find the complaint is out of time and I must find that the complainant was not discriminated against.

I find the complaint is out of time and I must find that the complainant was not discriminated against.

Equality, promotion