Complainant

Respondent

Parties

Joe Quinn

Health Service Executive

Representatives

Irish Medical Organisation

Niamh McGowan BL instructed by Arthur Cox Solicitors

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-00017855-001

09/03/2018

The complainant submits that he was indirectly discriminated against on the age grounds by the failure of the respondent to recognise his qualification and promote him.

The complainant withdrew a second complaint submitted (et-153992-ee-15).

During this hearing, submissions were substantial with copious volume of documentation and oral evidence heard over 2 days 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 to the issue, 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. This 2003 Agreement also created one Principal Medical Officer (PMO) grade per health board area.

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 qualification.

Preliminary Issue:

The complainant submitted that 23 July 2017 was the most recent date of discrimination and that the complainant had submitted a complaint form to the WRC and received confirmation from the WRC through a letter dated 13 March 2018 that the complaint had been received on 18 January 2018. The WRC outlined to the complainant that an issue had arisen while they had attempted to download the complaint form, which explained the reason for a different date as “receipt date” on the actual complaint form. The complainant submitted that the complaint was within time and that he should not be penalised by issues relating to difficulties with the WRC downloading the form.

The complainant confirmed that a second complaint (et-1532992-ee-15) was withdrawn.

Substantive Issue:

The complainant submitted that on 25th May 2017, he applied for the position of SMO and was advised on 23rd July 2017 and by letter dated 26 July 2017 that he was unsuccessful in the eligibility exercise as he did not have a “master’s in public health/diploma in public health and/or equivalent qualification”.

The complainant detailed that the set of qualifications outlined as suitable for the SMO grade posed a problem as it does not recognise his Diploma in Child Health which the complainant possesses and the Diploma in Child health is also a qualification that is more likely to be held by those who started their careers at the grade of AMO and therefore older people. The complainant further submitted that AMOs are statistically older than SMOs and that the Diploma in Child Health which a majority of these older AMOs would hold, has a NFQ rating of 9 which is equivalent to most master’s level qualifications. In response to the statistics provided by the respondent the complainant outlined that within his community group

It was submitted that the respondent has indirectly discriminated against the complainant on the grounds of age and that it remains ongoing. The respondent has penalised him by confining him to a salary scale and level of professional status below that of his younger colleagues The result of this is that the complainant is stranded at the basic grade of entry into his speciality and the unfairness is exacerbated by the fact that the complainant has been required to induct and train younger Doctors who have entered the community health medical service since 2003. In effect, the complainant is doing the same or like work as other doctors who are on a higher salary and status scale than the complainant.

Over time as a result of changes in work practices and the non-filling of vacancies, the differentiation between the work done by AMOs and SMOs has become less and less relevant in the complainant’s geographical location.. Evidence from Dr A, (PMO) was that the complainant does the same work as the SMOs.   In cross examination she confirmed that she had previously reviewed the complainant’s application for an SMO grade in 2017 and supported the view that he was not eligible because of his qualification. She outlined that she did not raise any objection at the time that he was indirectly discriminated against.

It was submitted that the vast majority of the work of an SMO or an AMO involves child health and it is reasonable and obvious that the postgraduate Diploma in Child Health as an equivalent qualification should suffice for appointments to SMO posts. It was set out that when the complainant retires, he will be replaced by SMOs who will do exactly the same job that he does.   The complainant submitted that while there are some SMOs nationally whose main function is in management; the vast majority do the same work as AMOs whom they work alongside on a daily basis.   Furthermore, no review has taken place of the list of qualifications deemed suitably equivalent for the role of SMO.

The complainant rejected that the issue was more appropriate to an industrial relations forum as had been previously suggested by the respondent and it was submitted that by the interpretation and operation of the 2003 Agreement, the respondent had indirectly discriminated against the complainant on the grounds of his age and this discrimination remains ongoing.

Case law cited included Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, Games v University of Kent UKEAT/0524/13/DA, King v Great Britain China Centre [1992] ICR516, Citibank v Massinde Ntoko EED045

Preliminary Issue:

The respondent submitted that the complaint was out of time as detailed at the top of the complaint form where it states, “Receipt date: 09/03/2018”.

Substantive Issue:

Without prejudice to their claim that the complainant was out of time the respondent submitted that the complainant had not been discriminated against and had not established a prima facie case of discrimination.

It was submitted that the complainant had detailed in his original complaint that his claim was similar to that of Kevin Brogan v HSE which had been subject to an adjudication hearing (DEC-E2016-078), an appeal to the Labour Court (EDA1633) and an appeal on a point of law to the High Court (2016/395 MCA). The complaints in Brogan v HSE were the same as in the instant case, namely that the application of the 2003 Agreement and/or requirement for particular educational qualifications for SMO candidates was and is discriminatory on age grounds. The High Court set aside the determination of the Labour Court as it found that a two-pronged test is required such that as well as determining whether an employer has maintained and kept in force a regime, rule, practice or principle (which the Labour Court had found), the Court must also be satisfied that the regime, rule, practice or principle is discriminatory which has a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] IRLR387.

In the instant case it was submitted that the complainant has failed to and cannot show that the educational qualification requirement imposed constitutes a discriminatory regime, rule, practice or principle that remains in force and has a clear and adverse effect on the complainant.   It is insufficient to assert that obtaining the qualification is more difficult for older people unless the complainant can adduce actual relevant evidence to support his claim.

It was submitted that the comparators identified by the complainant does not give rise to evidence sufficiently significant to establish a prima facie case that he had been discriminated against on age grounds. It was submitted that a number of employees who are older and younger than the complainant hold the necessary qualification.   The respondent provided data for 2018 which 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:

30-34: 4

35-39: 11

40-44: 22

45-49: 10

50-54: 12

55-59: 11

60-64: 14

65+:   4

A further breakdown was provided within this separate community healthcare organisations including the complainants, identifying that those who held the AMOs and SMOs positions were younger and older than the complainant. The respondent detailed that the complainant had failed to and cannot show that the educational qualification requirement imposed constitutes a discriminatory regime, rule practice or principle (on age grounds) that remains in force.

The respondent submitted that it is for the respondent to determine the requirements for and equivalency of qualifications as set out in the Health Act 2004 and the qualifications for the post of SMO were approved by the Minister and are contained in circular 23/2004. The complainant has not established a prima facie case that he has suffered less favourable treatment on the grounds of age.

Even if he could show indirect discrimination on the grounds of age, which was denied, it was submitted that the setting of educational qualification for the post of SMO falls squarely within the exception provisions of section 36 of the Acts and that the complaint must fail.   The respondent submitted that section 36(4) and (5) makes lawful the requirement to hold the specified qualifications for the post of SMO even if the effect on the complainant is indirectly discriminatory which the respondent did not accept.

Case law submitted included Office of the Civil Service and Local Appointments Commissioners v Paul Gorry EDA0614, Health Service Executive v Maura Fitzgerald EDA1915, County Cork VEC v Hurley EDA1124

Preliminary Issue:

The respondent submits the complaint is out of time as the top of the complaint form states “Receipt date: 09/03/2018”.   I have examined the form and the associated correspondence. The complaint form is not a statutory form and I am satisfied with the explanation that owing to difficulties with downloading the form, it has a “receipt” date on it that does not reflect when the form was received by the WRC on 18 January 2018. I find that the complaint is within time.

Substantive:

Section 6(1) of the Employment Equality Acts 1998 and 2004 (the Act) provides, as follows:

‘‘(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,

Section 6(2)(f) provides that

“As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),

Indirect discrimination, as contained in Article2(2) of European Council Directive 97/80/EC arises where an apparently neutral provision criterion or practice puts persons having a protected characteristic, in this case age grounds, at a particular disadvantage. In Stokes v Christian Brothers High School Clonmel [2015] IESC 13, the Supreme Court per Clarke J, as he then was, at par 9.2, referred to the meaning to be ascribed to the term “particular” as used in this context. He held as follows: - “I am satisfied that the use of the term "particular" brings with it a requirement, as a matter of law, that it must be established that the extent of any disadvantage is significant or appreciable.”

Section 85A (1) of the Act states: “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.”   This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA082 McCarthy v Cork City Council the Labour Court pointed out that 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 facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

At the time of the most recent date of alleged discrimination, the complainant was aged 58 and claims he was indirectly discriminated against as he is older than comparators. It was not in dispute that the educational qualification standards set out for the post of SMO are applied to all the candidates. The practice that the Complainant submits that is giving rise to the particular disadvantage contended for, is the failure to recognise his Diploma in Child Health that would allow him to be promoted to the grade of SMO.   The failure to recognise this diploma, which he submits is more likely to be held by older doctors, and more likely to be held by those who started their careers at the grade of AMO ie before the 2003 Agreement, is alleged to be indirect discrimination.

It has been set out in Southern Health Board v Mitchell AEE/99/E that

“the first requirement is that the complainant establish facts from which may be presumed that the principle of equal treatment has not been applied to them.   This indicates that a claimant must provide on the balance of probabilities the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination.

One aspect of the complainant’s submission is that his Diploma in Child Health should be accepted as an equivalent qualification required for the SMO grade; owing to the large amount of work completed in the area of child health and that the Diploma in Child Health is now out fashion as it is considered an older qualification. While there is often justification to regularly review qualifications required for a post, including what may be deemed as “equivalent”, it would appear that this has been done by the respondent and in any event, I do not find that the complainant has established a prima facie case of discrimination with this element of his complaint.

The complainant also submits that younger doctors are more likely, than those of his age, to hold the relevant educational qualification (of Master/s Diploma in Public Health), to fill the post of SMO and that older doctors are therefore indirectly discriminated against. The use of statistics is a permissible means of showing that an impugned practice criteria or provision (PCP) places those having a particular characteristic at a significant disadvantage relative to those who do not have that characteristic. However, the statistics relied upon must be relevant and probative of that which they are relied upon to show. This normally involves identifying a pool comprising those who can comply with the PCP (the advantaged group) and those who do not (the disadvantaged group) and comparing the number in each category by reference to the protected characteristic in issue, in this case age. If, in the context of the instant case, the advantaged group comprises significantly more people in a younger age group that those in the disadvantaged group there is prima facie discrimination and the Respondent must objectively justify the requirement of the PCP giving rise to the disadvantage. This approach was also adopted by this Court in Determination EDA072, PSEU v Minister for Finance and CPSU. That decision was appealed to the High Court and was upheld by O’Keeffe J, reported as Neil King and Ors v Minister for Finance and Ors[2010] IEHC 307. In certain circumstances the identification of the appropriate pool can be problematic. It has been held by the UK Court of Appeal in Grundy v British Airways PLC[2008] IRLR 74, that the correct principle is that the pool must be one which suitably tests the particular discrimination complained of, but that is not the same thing as the proposition that there is always a single suitable pool for every case. In conducting an exercise of this nature, the question which must always be examined will be whether the impugned PCP constitutes an obstacle in the way of persons having the protected characteristic relied upon by the Complainant. The decision of the House of Lords in Rutherford v Secretary of State for Trade and Industry[2006] IRLR 551 is authority for the proposition that the pool chosen for comparison should only comprise those who have an interest in the benefit in issue who could hope to obtain that benefit were it not for the PCP.

Applying the above, the complainant submits that AMOs are generally older and having reviewed the age profile of the AMOs I note that almost one third of AMOs are under the age of 50 with 22.58% between the age of 50-54; which is younger than the complainant’s age. The complainant submits that the qualification required to be promoted to the SMO grade indirectly discriminates against him as he is older and would find it more difficult to meet this qualification requirement than younger doctors. A review of the age profile of SMOs shows 4.54% fall into the youngest age profile (30-34), with 25% of the SMOs aged 40-44 and the number of SMOs across the remaining age profiles ranging from 11% to 16% which does not suggest any significant disparity; with 4.54% over the age of 65. Taking all of the evidence into consideration, on the whole I do not find that this supports that the complainant suffered a “a particular disadvantage when compared with other people who do not show the characteristic in question”” (Homerv Chief Constable of West Yorkshire Police [2012] UKSC 15).

Taking all of the above into consideration and also noting that there has always been a differentiation between the AMO role and the SAMO /SMO role and that a Public Health or equivalent qualification has been constant in this differentiation; I find that the complainant has failed to establish adiscriminatory regime, rule, practice or principle which has had a clear and adverse effect on him. I find that the complainant has failed to establish facts, statistical or otherwise, from which it may be presumed that the principle of equal treatment has not been applied to him. The complainant has failed to establish a prima facie case of discrimination and I must find that the complainant was not discriminated against.

The complainant has failed to establish a prima facie case of discrimination and I must find that the complainant was not discriminated against.

Discrimination, equality, age, indirect discrimination