EDA217

1.Appeal of Adjudication Officer Decision no. ADJ-00017246 CA-00022340-001

BACKGROUND:

2.The Worker appealed the decision of the Adjudication Officer to the Labour Court on the 24th September 2019. Labour Court hearings took place on the 15th October 2020 and 10th March 2021. The following is the Court's Determination:

DETERMINATION:

DETERMINATION:

Background.

This is a case under the Employment Equality Acts 1998-2015, ‘the Acts’.

Both Dr. O’Reilly,’ the Complainant’ and Dr. Lynn, ‘the Respondent’, are medical doctors. The Complainant worked as a locum for the Respondent’s practice for some years prior to 2011, at which point she became an employee of the Respondent.

In April 2018, the Complainant became aware that a younger, female colleague was being paid more than her. She established that a second, younger, female colleague was also being paid more than her. She raised this with the Respondent, who indicated that he believed there to be good, objective reasons for the differences.

The Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’ that she was being discriminated against on grounds of age in relation to an entitlement to equal pay. The Adjudication Officer, ‘the AO’, did not uphold the complaint. The Complainant appealed to this Court.

Summary of Complainant’s arguments.

The Respondent has discriminated against the Complainant on grounds of age in failing to provide equal pay in respect of two named comparators contrary to s.29(1) of the Acts.

The Comparators are Dr. D, who joined the practice in February 2017, and Dr. G, who joined the practice in September 2015. The Comparators are 20 years younger than the Complainant. All are qualified GPs and perform ‘like work’ within the meaning of s.7 of the Acts. Any differences in work are infrequent and of little importance as per the principles applied inDowdall v. 9 Female EmployeesandO’ Leary v. Minister for Transport (1998)ELR 113.

The Respondent relies on the fact that the Comparators are on the specialist register while the Complainant is not. This simply reflects a change in the practice of medical qualification in the time between the Complainant and the Comparators obtaining their respective qualifications. In any event, this only becomes important if a GP intends to apply for a public patients’ list and neither of the Comparators operate such a list. There is manifestly no difference in work, duties or functions between the Complainant and the Comparators.

The fact that the Comparators are involved in the NEDOC programme, whereas the Complainant is not is irrelevant as the programme pays the Comparators directly for their involvement and does not pay the practice. The only manner in which this can affect the practice is that the practice can be fined if it does not meet its requirements to provide doctors but the reality is that the Respondent has at least two other doctors in the practice who carry out work for NEDOC, not just the Comparators. Further, the Respondent is aware that the Complainant has a medical condition that renders her unable to drive at night.

The Respondent argues that different market conditions applied when the Comparators were engaged compared to those that applied when the Complainant was engaged. Any such defence is subject to the over arching principle of proportionality as perEnderby v. Frenchay Health Authority.Further inBrierton v. Calor Teoranta EDA 1510,the Labour Court noted that, in the absence of a transparent system of pay determination, the burden of proving compliance with the principle of equal treatment shifted to the employer and noted the Court’s earlier observations in the case ofNevins, Murphy, Flood v Portroe Stevedores Ltd (2005) 16 ELR 282that mere denials of discriminatory motive must be approached with caution. It is submitted that, in line with theBriertondecision, the Complainant has met the burden of proof in providing facts from which age related discrimination can be inferred as the Respondent’s pay system is devoid of structure and is opaque. The absence of intent is not an allowable defence to a claim under the Acts, as perSt. James’s Hospital v. Dr. Eng EDA 3/2002.

The Respondent argues that there are elements to the Complainant’s ‘package’, including payment of certain fees and the right to be paid 50% of fees for medical reports, that are not applicable to the Comparators. However, even taking these into account, a comparison of remuneration shows differences between the Complainant and the Comparators ranging from €4,650 to €10,860 per annum in the years 2015 to 2018, ( NB. A detailed table was provided to the Court).

While market forces may be a factor in different rates of pay being set, in the case ofEnderby v. Frenchay Health Authority, C-127/92, the importance of proportionality was stressed by the court.

The Complainant has more experience than the Comparators. While they have certain training that she does not, she, equally, has experience in Psychiatry that they do not and the practice website advertised this experience. The Complainant sought certain training similar to that of her colleagues but never received a response from the Respondent.

The Complainant retired from her post in January 2020.

Summary of Respondent’s arguments

InSouthern Health Board v Mitchell DEE011 (2001) E. L. R. 201, the Labour Court set out that the first requirement on a Complainant to meet the terms of s. 85 A(1) of the Acts is to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. It is only if they do so that the burden of proof shifts to the Respondent. Furthermore, as perMelbury Developments Ltd v Valpeters EDA 17/2009 92010) E. L. R. 64,mere speculation or assertion is insufficient to support an inference of discrimination and, as was noted inMargetts v. Graham Anthony and Co. Ltd. EDA038,the mere fact that a complainant falls into one of the discriminatory grounds is not sufficient, in itself, to establish a claim of discrimination.

The CJEU decision inKenny v. Minister for Justice, Equality and Law Reform, case C-427/11,set out in considered detail the factors that need to be considered in determining ‘like work’, including training requirements and working conditions. The Respondent denies that the Complainant meets these requirements and refers to the case ofEnderby v. Frenchay Health Authority C-127/92,in which the court accepted that market forces can be a factor to explain a pay practice. The Court’s attention is drawn also to theDanfoss case C-109/88.

The Complainant has not discharged her burden of proof that she was discriminated against on grounds of age. The Complainant names two comparators but she exaggerates the differences in hourly pay between her and them and fails to make reference to additional benefits that she received and that they do not, (NB-a table to show comparisons was provided to the Court). She was not required to work out of hours, she received addional leave, her membership fees for certain medical organisations were paid and she was paid 50% of any medical legal reports, none of which terms were afforded to other employees.Therefore, while her hourly rate was less than that of the Comparators, having regard to these benefits, there is little or no difference.

Without prejudice to the above, the Complainant did not carry out ‘like work’ to that of the Comparators. She did not carry out the additional two years’ training required for GPs nor did she apply at the relevant time to be exempted from this requirement. Because of this, the Complainant is not entitled to be listed on the Specialist Register and can never apply for a public patients’ list.

The Complainant did not engage in training provided by the Respondent and the Comparators have training in areas that she does not. Without this training, the Complainant is not capable of carrying out certain medical procedures.

Without prejudice to the above, the Respondent relies also on the differences in qualifications and training to justify any difference in remuneration between the Complainant and the Comparators.

The Respondent relies also on the Complainant’s lack of flexibility in carrying out her NEDOC hours, (an out of hours service provided by GPs in the region). Every participating practice is allocated a number of hours on a roster for every doctor in the practice. Failure to carry out the hours results in a €25 per hour fine together with payment to a locum. The Complainant is counted among the doctors in the practice, however she refused to do the hours, including day time hours, which leaves the other doctors with having to cover her hours. The Complainant’s reliance on a medical condition for refusing to do night time hours does not explain her refusal to do day time hours. This lack of flexibility, given the consequences, amounts to a reasonable justification for any difference in remuneration.

From 2015 to date, there has been a huge shortage of GPs in Ireland. The Respondent found it very difficult to recruit and struggled to find suitable doctors. In light of this shortage, the Comparators negotiated their hourly rate and refused to work for less. Age did not form any part of these negotiations.

Witness evidence

Dr. Katherine O’ Reilly.

Dr. O’ Reilly is ‘the Complainant’.

The witness explained that she qualified as a doctor in 1980. At that time only 14 places were available in the country for specialised GP training. Subsequently, a more extensive GP training programme was introduced. By that time, the witness was working in the psychiatric area and , in 1996, she took time out to raise her family. As a result, she did not do the training and she did not apply for exemption under what was known as the ‘Grandfather rule’.

The witness returned to medical work in 2004 and, in 2006, she began to do locum work for the Respondent. She became an employee in 2011.

The witness explained that she minimises driving at night due to a medical condition and, as a result of this plus matters related to her family, she had made clear her unavailability to do NEDOC hours. She stated that there was no requirement for her to participate in NEDOC in her contract.

When it was put to her that, as she received 50% of the relevant fees, she could have substantially increased her earning power by doing up to 25 medical reports a year, the witness said that she was ‘flabbergasted’ as she had never objected to doing such reports and had done so whenever asked. The figures showed that she had done up to 8 reports each year in the years 2015-2018.

With regard to training, the witness said that she had applied to the Respondent for training but had never heard back on the subject.

The witness said that she was surprised to learn of the difference in pay between the Comparators and her and only became aware of the full scale of the difference at the WRC hearing.

The witness said that, while she could not secure a public patients’ list, neither of the Comparators had such a list.

Under cross examination, it was put to the witness that there was no evidence that she had applied for training when she was an employee of the Respondent, to which she replied by noting that she had applied to the Respondent for training prior to becoming an employee.

The witness re-stated that she was fully qualified to work in a GP practice.

In response to questions from the Court, the witness stated that she had a number of discussions with the Respondent regarding her pay and that these had become heated.

The witness recognised that the Respondent had encountered recruitment difficulties when recruiting the Comparators but she said that she was doing the same work as them and should have been paid the same.

Dr Oliver Lynn.

Dr Lynn is ‘the Respondent’.

The witness stated that the age of his employees did not affect their pay.

The witness stated that the Comparators brought more value to the practice because of their participation in NEDOC and because they had undertaken additional training. While he accepted that the Complainant had, at one time, indicated an interest in one particular area of training, he stated that she had never followed up on this and that she showed no interest in training in some other areas that could have added value to the practice.

The Respondent described the Complainant as a ‘valued colleague’ and stated that he had no option but to pay what was paid to the Comparators because of the prevailing market forces when he sought to recruit them and that he needed to maintain these rates in order to retain them. He stressed that the Complainant had negotiated a different ‘package’ of remuneration with him when she was taken on as an employee, in which he undertook to pay certain professional fees for her and that she was afforded the opportunity to increase her earnings as she received 50% of the fees for medical reports, whereas the Comparators did not.

The witness stated that the Complainant had declined to sign her contract in 2011 because she did not wish to work NEDOC hours. He explained that the practice had to carry this because the Complainant was, as a doctor in the practice, included in the calculations for the practice’s liability to cover NEDOC hours.

Under cross examination, the witness accepted that the Complainant carried out a great deal of similar work to that of the Comparators, however, he noted that the added value to the practice provided by the Comparators created the potential for additional earnings for the practice. While the witness accepted that the Complainant’s interest in psychiatry was noted on the practice website, he stated that it did not generate any additional income.

The witness accepted that NEDOC afforded participating doctors the opportunity to increase their earnings and was not a part of the practice’s remuneration ‘package’ but he stated that the Complainant’s non participation made her less valuable to the practice and, as explained previously, generated potential liabilities.

The witness accepted that neither of the Comparators had their own public patients’ list but he stated that their qualifications provided potential to do so that could generate additional income for the practice. He understood that one of the Comparators was in the process of applying.

The witness acknowledged that the Complainant had referred to training in a letter in 2011 but this letter covered a wide range of issues and, he noted, she had never followed the matter up with him. He acknowledged that the Complainant had undertaken some training in treating diabetes in 2010 prior to becoming an employee but he viewed that as training for normal GP work.

The witness said that the Complainant had seemed to be happy with her remuneration ‘package’, that she had spoken about extending her contract before retirement and that she had always the possibility of improving her earnings by undertaking more medical reports and by participating in NEDOC.

Ms. Janet Byrne

Ms. Byrne is the Practice Manager for the Respondent.

The witness explained that when recruiting new doctors, the practice sought people who were on the specialist register and who had skills and training that could add value to the practice, taking account of the market and what the practice can afford.

The witness explained that the Complainant had been a locum until Revenue insisted, in 2011, that people in her situation should become employees. This required negotiation of a contract of employment with the Complainant. The rate of pay agreed was the market rate at the time. The Complainant failed to sign the new contract for four years. The issue was not pay but, rather, the fact that the Respondent wanted the Complainant to make herself available to the NEDOC out of hours service. Once that requirement was dropped by the Respondent, the Complainant was happy to sign the contract.

The witness said that availability for NEDOC hours is an issue with all doctors. NEDOC allocates the amount of hours required of a practice and the doctors affected have a meeting to allocate the hours. All are expected to live up to their allocation. Once doctors are allocated their hours, they are responsible for them. If they are unable to do the allocated hours, it is up to them to make sure that they are covered. This can be through swaps. If hour requirements are not met, there is a fine. If the shift has to be covered by a locum, there is a requirement to pay 15% of the relevant fee. All other doctors in the practice are part of NEDOC, it is included in their employment contract and the practice’s liability to provide doctors is calculated on the number of doctors in the practice, including the Complainant, even though she does not participate on the NEDOC roster.

The witness said that Dr. Lynn was known as the leading practitioner in certain family planning services in the locality, that the practice received referrals from other nearby practices and that the two named Comparators had undertaken training to acquire a range of related skills in this area, which enhanced the services that the practice could provide. The Complainant had declined to undertake this training. While accepting that the practice website advertised the experience of the Complainant in psychiatry, the witness said that all doctors have some knowledge of psychiatry and it was usual for GPs in the practice to refer cases to specialists rather than offer detailed counselling for time management reasons. Any delay in the throughput of patients caused knock on delays for other patients and could give rise to complaints.

The witness said that the Complainant declined to attend training in ‘Mirena’ family planning devices.

The witness outlined the difficulties in recruiting in 2014 and 2015. She outlined the extensive steps taken to advertise the position, which stated a requirement for candidates to be ‘vocationally trained’ so that they would be eligible to join the GMS list. Only one application was received, that of Dr. G, who was interested only because she was moving to live in the general area. The witness stated that, had the Complainant not been employed in the practice at the time, she would not have been eligible to apply for this position as she was not ‘vocationally trained’.

The witness stated that the market had changed between 2006 and 2015 and by the latter date, doctors were able to command significantly better remuneration. The successful applicant in 2015 sought higher pay than what was agreed eventually and had to be negotiated downwards. Similarly, in 2017 the advertisements for the post being filled specified the need for candidates to be ‘vocationally trained’. Again, at that time, the successful candidate sought a higher rate of pay than that eventually agreed. In that case agreement was reached by facilitating working time arrangements that suited the doctor concerned. The issue of NEDOC hours created a difficulty in those negotiations but the Respondent insisted that these had to be included in the contract.

The witness said that the Complainant was the only doctor in the practice who was paid for medical legal reports but that the Complainant was reluctant to do such reports for any patients with whom she was not familiar, even though the treating doctor’s notes would always be available.

Under cross examination, the witness said that, while the GP register was in place in 2011, as a locum in the practice it was possible for the Complainant to be taken on as an employee. The witness acknowledged training taken on by the Complainant in diabetes but said that the other doctors in the practice were competent already in this area. The witness accepted that she was not aware of all the Complainant’s training in psychiatry but noted that Dr. Lynn conducted the negotiations on the Complainant’s pay and that he would have been aware at the time.

When it was put to the witness that the Complainant only worked in the Respondent’s clinic in Duleek and that the Mirena procedure and Ultrasound were available only in the Drogheda clinic, the witness said that the Complainant worked one session per week in Drogheda, that rosters were moveable and that the Complainant’s contract provided for work in both locations.

When it was put to the witness that the Complainant had sought extra work and training but that this had not been arranged, the witness accepted that there had not been a written response but stated that there would have been discussions between the Complainant and Dr. Lynn.

The witness accepted that neither of the Comparators had obtained public patients since joining the practice, when it was put to her that any alleged added value would only arise when they did so, but she stated that they were in the process of doing so. She explained that there was an English language test which had to be passed. One of the Comparators had passed the test. The other Comparator was awaiting the test being scheduled.

It was put to the witness that the Complainant could apply to be assessed to determine if she could apply for the GMS list and the witness noted that the Complainant had not undertaken the process to make her eligible when she could have done so. The witness acknowledged that the Complainant was open to apply.

When it was put to her that the Complainant was not the only doctor in the practice who did not work their NEDOC hours, the witness said that Dr. Lynn and one colleague sometimes chose to pay the fines themselves rather than work the hours, at no loss to the practice.

Under questioning from the Court, the witness stated that in 2018, the practice had incurred fines to NEDOC of €1075 and had paid an average of €595 to Medsource, the locum service. The witness stated that the Complainant had received €1300 for doing medical reports but could have increased that by 50% if she had availed of the opportunities available to her. The witness said that the Complainant received additional annual leave of 2 sessions, (of 4 hours each), compared to her colleagues. The witness clarified that the amount of sessions worked per week by the Complainant had been varied over time to accommodate her wishes.

Mr. Barry O’ Brien

Mr. O’ Brien stated that he had a management consultancy business since 2005 that advised General Practices offering strategic and commercial advice to them. He stated that more than 1000 GPs had been, or still were, clients. The witness said that he was also a commercial partner in a number of practices and was the CEO of four GP ‘out of hours’ provider companies. He said that he was engaged by the ICGP as a course tutor on their management programmes and that he provided training to Practice Managers and GPs and also that he trained trainee GPs in years 3 and 4 of their GP training.

The witness said that he would advise practices, when they were recruiting, to recruit doctors who are vocationally trained as this generates the possibility of higher income for the practice. He said that he would expect to pay more to a doctor who had this qualification. He explained that the more doctors in a practice on the GMS list, the more income that can be generated for the practice, even if the number of public patients remains constant. This was because, while the capitation payment was based on the number of patients, (having regard to age and gender), as was a Specialist Type Consultancy payment, other payments depend on the numbers of doctors in the scheme in a practice. These include Practical Support Subsidies, to cover costs in admin., nursing support and for practice managers plus payments for annual leave, study leave and medical indemnity for doctors in the scheme. Having more doctors in the scheme generates opportunities for more patients. All told an extra doctor in the scheme can generate somewhere between €50,000 to €70,000 pa for the practice. As a result, somebody on the specialist register can expect to be paid better than somebody who is not.

The witness expressed the opinion that being on the specialist register justified a doctor being paid more than one who is not. The witness said that any such difference is unrelated to age.

The witness said that, in his view, the rate paid to Dr.G. when she was engaged in 2015 reflected the market rate at that time.

The witness said that practices would usually require doctors to participate in the out of hours service and that this would be expected to be included in employment contracts. In his view, the Complainant, by having this requirement excluded from her contract, had secured a benefit.

Under cross examination, the witness stated that the two Comparators would have been enrolled fairly automatically by the ICGP as they had Spanish qualifications. He accepted that the Complainant could apply to be on the specialist register but could not say if her application would be accepted.

It was put to the witness that the two Comparators had not joined the GMS list, so any benefit of their eligibility had not accrued to the Respondent. The witness stated that this would not affect their value in the jobs’ marketplace.

In referring to a letter of advice given to the Respondent by the witness in December 2017 regarding his knowledge of the market rates for doctors with and without the eligibility to be on the GMS list, the witness confirmed that, at the time, he was not aware of the Complainant’s experience in psychiatry. He noted that for a period between 2007 and 2009, it was possible for doctors to transfer on to the specialist register under a ‘grandfather’ rule relatively easily and that the vast majority of GPs had done so. He understood that older GPs were examined on a case by case basis if they applied. When told that the Complainant had taken time out to look after her children, so could not apply at the time, the witness said that he was not aware how that would stop anybody applying.

The witness noted that any doctor, including the Complainant, could apply to be assessed for inclusion on the specialist register but said that he was not competent to judge if the Complainant would be successful. When it was put to him that one of the Comparators was not eligible as she still had to pass an English language test, the witness said that there was no comparison as this was a relatively easy test that could be passed by any doctor who was used to working through English.

The witness refuted a suggestion that doctors deemed not to be vocationally trained would be likely to be older and said that age was not a factor.

The applicable law

Employment Equality Acts 1998-2015

Discrimination for the purposes of this Act.

6.— (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,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) 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,………(in this Act referred to as “the age ground”),

Like work.

7.— (1) Subject tosubsection (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.

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;

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.

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

Deliberation

This case requires the Court to consider the question of whether the Respondent can rely on s. 28(5) of the Acts, which allows different rates of pay to be paid to employees on grounds other than the nine grounds of discrimination set out in the Acts.

The primary facts on which the Complainant’s case is based, as perSouthern Health Board v. Mitchell (2001) E.L.R. 201,are that she is older than the Comparators and that the Respondent paid her less. When it was put to the parties by the Court that these facts might offer ‘prima facie’ evidence such that the burden of proof would shift to the Respondent, the representative of the Respondent argued that the comparisons between the Complainant and the Comparators were not valid as the Comparators have different qualifications and different working conditions, see s.7(c) of the Acts above. It is, therefore, necessary for the Court to consider this argument. The Court also has to consider if the comparison, even if valid on the face of it, is sufficient to establish discrimination or if, as noted inMargetts v. Graham Anthony and Co. Ltd, EDA 038,other facts, in addition to the fact that the Complainant falls into one of the discrimination grounds, are required before it can be determined that discrimination has occurred.

In this regard, the Court notes that there was no formal system in place for the determination of pay for employees of the Respondent and, as a consequence, there was a lack of transparency, a matter which was noted to be of consequence in undermining a defence against claims of discrimination in the case ofBrierton v. Calor Teo., EDA 1510.The Court notes also that, as the Complainant’s representative argued, ‘bona fides’ is not a defence against a claim of discrimination, seeSt. James’ Hospital v. Dr. Eng EDA 3/2002.The Complainant argues that she carried out the same work as her Comparators and was entitled to be paid the same and that, if there were any differences in work, they were of little importance and could not justify differences in payment, seeO’ Leary v. Minister for Transport (1998) E.L. R. 113.

The Respondent argued that the fact the Comparators were on the specialist register and could apply for public patients, while the Complainant could not, increased their market value. This matter was examined at length in the course of the hearing. Evidence was given, and no evidence was given in rebuttal, that doctors on the specialist register could expect to be paid more than those who were not on the register. It does not seem to be in dispute that being on the GMS list created potential for significant additional earnings for the practice. It was argued, therefore, that this justified a higher rate of pay for the Comparators. However, the Respondent was unable to give a satisfactory answer to the question that, if this was the case, why had this potential extra value not been utilised? One of the Comparators has worked for the Respondent since 2015 yet has not applied to the GMS list. Therefore, while there may well be potential for additional earnings, the failure to utilise that potential has to call into question an argument that this could justify paying the Complainant a lesser rate of pay than that paid to the Comparators. Certainly, the Court could not be satisfied that this argument could be determinative of the issue before it.

The Respondent argued also that the comparison drawn by the Complainant with the Comparators is invalid because the Comparators had participated in certain training while the Complainant had not. The validity of this assertion was questioned on behalf of the Complainant and was countered by noting the experience of the Complainant in the area of psychiatry. In any event, the Court notes that the Comparators were paid a higher rate of pay from the outset of their employment and before this could possibly have been considered to be a factor. The Court is, therefore, unconvinced by this argument.

S. 7(c) of the Acts allows for different rates of pay to be paid where there are differences in working conditions. It was argued for the Respondent that this was applicable to this case. It was argued that the fact of the Complainant’s non availability to work out of hours by participating in the NEDOC service was a considerable benefit to her, amounted to a significant difference in working conditions between the Complainant and the Comparators and had the effect of imposing additional burdens on other employees of the practice, which includes the Comparators. It is difficult to argue with any of these assertions except perhaps to require further consideration of the issue of the question of degree, in other words whether the benefit was considerable and whether the difference was significant, such that the answer to either or both questions could determine whether a difference in remuneration was warranted? In this regard, the Court notes other differences in working conditions as the Complainant had a higher level of annual leave than her colleagues, had certain membership fees paid while her colleagues did not and had the potential for additional earnings that were not available to her colleagues through the completion of medical legal reports in cases of claimed personal injuries. The Court notes also that the monetary value of the latter two conditions, while closing the pay gap somewhat, still left the Complainant earning less than the Comparators. Therefore, of themselves, those two particular differences cannot be held to amount to any part of justification for the pay differences.

Both parties quoted the case ofEnderby v. Frenchay Health Authority C-127/92.The extract from that judgment of most significance to the argument on behalf of the Respondent is, as follows;

‘The state of the employment market, which may lead an employer to increase the pay of a particular job in order to attract candidates, may constitute an objectively justified ground…’ for paying more to such candidates than to other employees. However, as the Complainant’s representative pointed out, this does not afford an employer ‘carte blanche’ to pay wildly different rates of pay and any difference must be proportionate.

In the view of the Court, a determination of this case hinges on the questions examined in ‘Enderby’. Evidence was given on behalf of the Respondent by Mr. O’Brien, who has extensive knowledge of such matters, that the market for doctors changed between the time that the Complainant was recruited as an employee and the time of recruitment of the two Comparators. The evidence given was that doctors were in a more favourable position in negotiating their remuneration at the time when the Comparators were recruited than they were when the Complainant was recruited. Evidence to this effect was also given by Ms. Byrne, the Practice Manager. No evidence was put forward to rebut this claim.

The issue then for the Court is to consider whether any discrepancy in pay was disproportionate? In that context the possibility for the Complainant to accrue additional earnings has to be a factor to be considered. That possibility could be countered by the fact that the Comparators, through their participation in NEDOC, also had the potential to add to their earnings. On the other hand, the Respondent argued, and both Ms. Byrne and Mr. O’ Brien stated in unrefuted evidence, that out of hours availability was perceived as a negative by those required to make themselves available rather than as an additional income opportunity. The Court finds that to be credible. Indeed, in assessing the proportionality in differences in remuneration, the very considerable value to the Complainant afforded by the fact that, outside of set session hours, her time was her own, cannot be overlooked. It was a hugely positive aspect of her contractual relationship with her employer, from the point of view of the Complainant, one that is impossible to quantify precisely in terms of remuneration but one which had immense value to her in maintaining a favourable work/life balance. The continued insistence by the Respondent, when negotiating the Complainant’s contract, that the Complainant should participate in the out of hours service, caused her to delay signing her employment contract for some years until this provision was dropped by the Respondent. This gives some indication of the value that she placed on it. The Court has to take this into consideration in assessing whether the differences in pay were disproportionate.

Taking all factors into account, in the unique circumstances of the case, the Court is satisfied that the Respondent was entitled to pay different rates of pay to the Complainant compared to those paid to the Comparators because, as per s. 28 (5) of the Acts, the grounds for doing so were outside of the discriminatory grounds set out in the Acts. Those grounds conformed with the tests set out in the ‘Enderby’ case as, on the evidence of two witnesses accepted by the Court, there were market circumstances at the time the Comparators were recruited that warranted pay being offered to them above the rate paid to the Complainant. These differences in pay were proportionate, taking account of all aspects of the Complainant’s remuneration ‘package’.

Determination

The Decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Tom Geraghty
H.M.	______________________
06/04/2021	Deputy Chairman