ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013657

Parties:

	Complainant	Respondent
Anonymised Parties	A Doctor	A Health Service Provider

Representatives

Niamh McGowan BL instructed by Arthur Cox Solicitors

Complaints:

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-00017516-001	19/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00017516-002	19/02/2018

Date of Adjudication Hearing: 10/4/2019, 29/07/2019, 30/07/2019

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant submits that she did not receive equal pay because of her age, 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

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 master’s 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 qualification. The complainant has a master’s degree and in 2015 was successful at interview and ranked number 44 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.

Summary of Complainant’s Case: CA-00017516-001

Preliminary Issue:

The complainant previously submitted a complaint ref et-150190-ee-14 which was heard on 14th January 2016. The complainant submitted the instant complaints on 19th February 2018 and submitted in her complaint form that “equal pay box was not ticked on my previous form”. In further correspondence with the WRC dated 19th February 2018; the complainant references that the instant complaints are “relodged” complaints. In response to the respondent’s submission that et-150190-ee-14 had been withdrawn as per her then legal representative in a letter dated 6th December 2018, the complainant submitted that she did not wish her equal pay claim to be withdrawn.

Substantive Issue:

The complainant submits that she has the same qualifications as SMOs and does the same work but with unequal pay as she is discriminated against because of her age as SMOs are younger. The complainant initially cited as comparators Dr AA and Dr BB SMOs and later submitted that SMOs within CHO_A would be her comparators for this equal pay complaint. It was submitted that the complainant sourced her information regarding her comparator pool from a census and from data that is publicly available.

This data indicated that:

The Mean age of 7 AMOs in CHO_A is 61.4 years

The Mean age of 15 SMOs within CHO_A is 48 years

The Mean age of 5 SMOs within County X is 54 years

The Mean age of 6 SMOs within County Y is 42 years

The Mean age of 4 SMOs within County Z is 48 years.

The complainant submitted that her line manager, an SMO, is younger than her and despite having great experience than her manager and doing the same work, the complainant is paid less.

It was submitted there is a significant difference between the mean ages of the doctors employed at SMO grade and those of doctors at the AMO grade. The complainant asserted that differences in salary between the grade of AMO and SMO is not a justified difference in salaries as the grade of AMO comprises of older employees maintained on a lower rate of pay for historical reasons only.

Summary of Respondent’s Case: CA-00017516-001

Preliminary Issue #1:

The respondent submitted that the complainant had withdrawn a previous complainant ref et-150190-ee-14 and that the complainant could not look for that complaint to be “relodged” as that is not an accurate representation of the status of a new complaint. The respondent noted that the complainant’s submissions are the same as her submissions for her withdrawn claim et-150190-ee-14 and the respondent had no issue with same provided the new complaints are treated as new complaints and not merged with the withdrawn case et-150190-ee-14.

Substantive Issue:

Without prejudice to the above, 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. It was submitted that her two comparators namely Dr AA and Dr BB are no more than an assertion that she does the same work as them but earns less than them. The complainant in effect had failed to address the population of all AMOs and SMOs. When the complainant was requested to provide appropriate comparator pools, she later suggested all the AMOs in CHO_A whom she regarded as significantly older but it was submitted that the complainant had failed to provide any evidence that she had been discriminated against on the age grounds. 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. The respondent also submitted that the LTP has benefitted the complainant in the past and that the complainant meets the educational qualification standards required for the role of SMO and that she was placed #44 on the panel for promotion in 2015. The complainant is currently placed #17 on the panel and 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 63 years old and data from 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 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

There are SMOs the same age as the complainant and the complainant is on a panel for such a post and the difference in pay is because of the difference in the roles. It is well established that professional training may serve as both an objective justification and a possible criterion for determining whether in fact the same work is being performed which is in keeping with the onus on the employer to determine the criteria for workplace selection. The complainant has not established suitable comparator pools and has failed to establish a prima facia case in respects of her equal pay claims of discrimination.

Findings and Conclusions: CA-00017516-001

Preliminary Issue #1:

The complainant has submitted that this instant complaint Adj-00013657 is linked to a previously submitted complaint with a ref et-150190-ee-14. The respondent submits that et-150190-ee-14 had been withdrawn. I note that a letter from the complainant’s then legal representative dated 6th December 2018 sets out “our client has instructed us to withdraw her original complainant, the reference of which is in your letter”. I am satisfied that the reference in the letter is with reference to et-150190-ee-14 and therefore find that et-150190-ee-14 waswithdrawn. I find that Adj-00013657 comprises of new complaints and as such is not a ‘relodged’ complaint and as such Adj-00013657 will be heard as new complaints.

Substantive Issue:

The complainant submits in her claim form that her comparators were 2 SMOs who are younger than her. I note that one of these comparators were located in CHO_B and one located in CHO_A. The complainant at a later stage advised that she wished to use all of the SMOs within CHO_A as her comparator pool.

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 19 provides that .— (1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) In this section ‘ relevant time ’ , in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.

(3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

Section 29 refers to Entitlement to equal remuneration.

29.— (1) It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) For the purposes of subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.

(3) For the purposes of this Part, where D’s employer is an associated employer of C’s employer, C and D shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

(4) Section 19(4) applies in relation to C and D as it applies in relation to A and B, with the modification that the reference in it to persons of a particular gender (being As or Bs) is a reference to persons (being Cs or Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.

(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

Section 28 refers to The comparators.

28.— (1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

( e) in relation to the age ground, C and D are of different ages;

(2) In the following provisions of this Part, any reference to C and D which does not apply to a specific discriminatory ground shall be treated as a reference to C and D in the context of each of the discriminatory grounds (other than the gender ground) considered separately.

and Section 7 refers to Like Work

7.— (1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

( a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

( b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

( c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

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”.

There has been much case law dealing with comparator pools. The use of statistics is deemed 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.

As further determined by the Court of Justice (C-427/11) statistics must show “whether they cover enough individuals; whether they consider purely fortuitous or short term phenomena and whether in general they appear to be significant”. McCarthy J set out what Mr. Justice John MacMenamin regarded in Kenny & Ors v The Department of Justice, Equality and Law Reform, The Department of Finance and The Commissioner of An Garda Síochána [2018] IESC 62 as a “careful summary of the legal procedure to be followed thenceforward.

· (i) All issues arising in a claim of indirect gender discrimination must be determined by the use of the same comparators;

· (ii) Such comparators are valid comparators only if they cover enough individuals, do not illustrate purely fortuitous or short term phenomena, and in general appear to be significant;

· (iii) Valid comparators could not be based upon groups formed or individuals chosen in an arbitrary manner, or on an artificial or unrepresentative basis: the choices must be made from the whole cohort of persons with whom claimants sought parity;

· (iv) One could not simply discard a succession of persons or classes in a cohort in order to arrive, by a process of elimination, at classes within the whole group whose members were performing the same work;

· (v) The comparators must be in an equivalent situation to the claimants; and

· (vi) The comparators must constitute a relatively large number of employees who did the same work as the claimants but were paid at a higher rate; that is to say, a relatively large number of men, or enough of them.

Having considered the submissions I do not regard the complainant’s comparator pool of either 2 individuals (Dr AA and Dr BB) or CHO_A as pools which meets the aforementioned criteria as it does not cover enough individuals, appears to be illustrating “purely fortuitous or short terms phenomena” and does not “constitute a relatively large number of employees”. The pool of all SMOs within the community totalling 88 identifies a broad range of age profiles with 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% with 4.54% over the age of 65 which does not on the whole suggest significant disparity across the ages and which did not suggest that SMOs are younger than the complainant. The complainant has not established a prima facia claim that there is a difference in pay because of discrimination on the grounds of age.

Summary of Complainant’s Case: CA-00017516-002

Preliminary Issue #1:

Preliminary Issue #2

In response to the respondent’s preliminary issue that the complaint is statute barred as there have been no incidences within either 6 or 12 months of this instant complaint, the complainant submitted that discrimination is ongoing and that the most recent date of discrimination was 19th February 2019. The complainant made reference to the 2003 Agreement and the LTP implemented in 1971 and that she was discriminated against because of this LTP. It was also submitted that the LTP has been used for transferring SMOs in 2008, 2010, 2013, 2014 and 2015.

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 outlined that her research through her own census and other data had confirmed that :

The Mean age of 7 AMOs in County X is 61.4 years

The Mean age of 5 SMOs within County X is 54 years

The Mean age of 6 SMOs within County Y is 42 years

The Mean age of 4 SMOs within County Z is 48 years.

It was submitted by the complainant that the age profile of the doctors who have applied to transfer to County X through the LTP are significantly younger than the complainant and that the appropriate comparator pool for the complaint should be the age profile of the AMOs in County X and that of doctors on the legacy panel seeking transfer to County X. The complainant advised that she would assume that if SMOs are living in County X and working in either County Y or County Z they would apply for a transfer to County X and that she was not privy to the list of actual number of SMOs seeking transfers to County X. The complainant concluded that the mean age of SMOs on the LTP seeking transfers to County X is significantly less than the mean age of County X’s AMOs which is 61.4 and

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.

Summary of Respondent’s Case: CA-00017516-002

Preliminary Issue #1:

Preliminary Issue #2:

Notwithstanding the above the respondent submitted that the complainant is statute barred from proceeding with her claim as no incidences of alleged discrimination had occurred within 6 or 12 months prior to her submission of this instant complaint which was submitted on 19th February 2018.

Substantive Issue:

Without prejudice to the above, the Respondent refutes the allegations and submits that the LTP has benefitted the complainant in the past.

It was submitted that the complainant meets the educational qualification standards required for the role of SMO and that she was placed #44 on the panel for promotion in 2015. The complainant is currently placed #17 on the panel and has not expressed any interest in a post of SMO in a county other than County X. While the complainant is on a panel, she remains at the post of AMO and the panel is only used for transfers within your own grade. There has not been any transfers of SMOs either 6 months or 12 months prior to the complainant’s submission of this instant complaint.

The respondent asserted 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.

Age

30-34: 1

35-39: 0

40-44: 4

45-49: 4

50-54: 7

55-59: 4

60-64: 7

65+: 4

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.

Findings and Conclusions: CA-00017516-002

Preliminary Issue #1:

Preliminary Issue #2:

The respondent raises a preliminary issue that the complainant is statute barred from proceeding with her claim. The complainant’s in her complainant form submitted that discrimination is ongoing and that the most recent date of discrimination was 19th February 2019. 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 F118 [ 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 #44 on the panel in 2015, is currently #17 on the panel and the last incident prior to this complaint where the LTP was utilised for SMOs was 2015 and that this complaint was submitted 19 February 2018. I therefore find the complainants are out of time and I must find that the complainant was not discriminated against.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00017516-001

The complainant has not established a prima facia claim that there is a difference in pay because of discrimination on the grounds of age and I find that the complainant was not discriminated against.

CA-00017516-002

I find that the complaint is out of time and the complainant has failed to establish a prima facie case of discrimination and the complainant was not discriminated against.

Dated: 21st May 2020

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Equal pay, promotion, equality