Complainant

Respondent

Anonymised Parties

A Medical Professional

Public Health Provider

Representatives

Thomas Smyth Irish Medical Organisation

none 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029515-001

08/07/2019

This dispute concerns a claim by the Complainant that she is being paid significantly less than four colleagues who operate at the same level and have similar responsibilities. The Complainant referred the dispute to the WRC on the 8th July 2019. An adjudication hearing took place on the 18th November 2019 which I adjourned by consent in order to afford the parties an opportunity to explore settlement. As settlement was not achieved the case was re-scheduled and the resumed adjudication hearing took place remotely on the 1st February 2021.

The Complainant outlined that she is a medical practitioner holding specialist registration in a particular health area. In April 2014 she applied for and was appointed to a new national post within the Respondent covering her specialist area. At the time the Respondent had created five such national posts covering different health areas – including the one to which the Complainant was appointed. Although the Complainant was appointed for an initial two year period up to 2016, she continues to hold this national position within the Respondent. The Complainant reports to two National Directors.

In 2015 the Complainant realised her salary was significantly lower than that of the holders of the four other national posts. In some cases the difference equated to the amount of the Clinical Directors Allowance (CDA) which at the time was €46k and was paid on top of the individual salary scale. The Complainant first raised the issue of her remuneration in 2015 and since then, she has unsuccessfully continued to pursue pay parity with her colleagues. In February 2016 the  Complainant agreed to a revision and expansion of her role to include another health area on the basis of assurances that her pay parity claim would be resolved.

The Complainant outlined the steps she had taken to seek resolution and the various responses she had received from the Respondent. These included:

·       Email exchanges of 19 and 26 May 2015 wherein the Complainant was advised by the National Director to whom she reported that advice was being taken in order to pursue payment of the CDA to the Complainant;

·       Letter from the Respondent’s HR Manager of the 4th November 2015 which advised that the CDA could not be paid to the Complainant as she did not hold a Consultant’s contract. The HR Manager did however suggest that a business case could be drafted seeking approval from the Department of Health (DOH) and the Department of Public Expenditure and Reform (DPER) to address the Complainant’s salary concerns;

·       Letter from the Complainant of the 22nd January 2016 to the National Director to whom she reported, wherein she stated that:

“….it has become apparent that there are radical discrepancies between the remuneration of the 5 [national posts] even though all function at the same level and are equally responsible for the delivery of their posts…..

I believe the inequity of my situation needs to be addressed urgently….I have indicated to you that I would accept the same financial allowance as the Clinical Directors Allowance, by another name if required, but at this point I need parity of esteem and to be treated equitably with my clinical peers.….”

·       Email of the 5th February 2016 from the Complainant raising an alternative solution to a single pay grade for all 5 national posts;

·       Email of the 20th July 2017 from the Complainant to the Respondent noting her frustration, stress and disappointment with the lack of progress and that she had been assured in the Spring of 2017 the post was to be re-advertised with a view to addressing her pay parity claim and had been furnished with a job description;

·       Letter to the Complainant of the 9th August 2017 from the Respondent’s National Director which stated inter alia:

“I have made it very clear from when you first raised your unhappiness at being paid less than your colleagues, that while I fully understood and supported your case, that I had no authority to resolve it. Pay, allowances, grading and salary are all matters that can only be decided by the Department of Health and the Department of Public Expenditure and Reform….

“In summary, we looked at a director’s allowance, we looked at other salary scales, and we looked very carefully at the pay…….and examined several options….

“In May, on review of all elements of the work and following further discussion with HR, I formed the view that the National Recruitment Service would not proceed to advertise the post without proper sanction….

“I have decided that the only course of action is to fully support your case and seek support from the Department of Health to re-grade the post. I have sent a business case to the Department today asking for their support and recommending that that the post be re-graded and stating the reasons why…..”

·       Letter to the Respondent of the 13th May 2019 from the IMO on behalf of the Complainant calling for urgent action to remedy her claim. 

It is the Complainant’s position that notwithstanding her persistent raising of the matter of her pay disparity and the assurances she was given by the Respondent, that there has been no progress and that she has not seen any business case made to the DOH. The Complainant stated that she holds the same senior role and responsibilities as her colleagues in the other national posts and that the job descriptions for all five posts are identical bar the reporting arrangements. She stated that in 2016 she demonstrated her willingness to take on other responsibilities when the post was expanded to include another health area in the expectation that her pay parity issue would be resolved. The Complainant further stated that a number of the medical practitioners who report to her are on higher salaries. The Complainant outlined her currently salary in comparison to her colleagues and stated that the difference was equivalent to the monetary value of the CDA allowance which is now in the region of €50k.  The Complainant also outlined that there was precedent for awarding the CDA in another comparable situation.

Whilst previously the Complainant had agreed to her post being re-advertised as part of a resolution of her claim, at the adjudication hearing she clarified that at this stage she would object to the re-advertisement of her post on the basis that this would be unfair and that she has delivered all that has been asked of her. The Complainant was however agreeable to her post being reviewed in terms of the duties and responsibilities.

At the adjudication hearing the Complainant clarified that she is seeking that her claim for pay parity be dealt with on an individual  basis and that as a matter of fairness and equity,  she be awarded:

·       Pay parity with her colleagues in the other national posts by way of the payment of a higher salary or allowance of monetary equivalence  to the CDA from the current date; and

·       Back payment to the date of her appointment to the national post.

The Respondent outlined the background in relation to the Complainant’s appointment and salary. In relation to the Complainant’s dispute, the Respondent noted that there was a distinction between the Complainant’s claim seeking payment of the CDA allowance and pay parity. The Respondent outlined the following:

·       That the Complainant had applied for the national post through an Expression of Interest process which stated that “reassignment/secondment to this role will be made on a grade to grade basis with current terms and conditions applying”.The Complainant was appointed on that basis with effect from the 25th April 2014;

·       That in response to the Complainant’s raising the pay parity issue, the Respondent’s HR Manager had advised in her letter of the 4th November 2015 that it was not possible to pay the CDA allowance to the Complainant as she did not hold a Consultant’s contract and further, that under the public services national pay agreement at the time – Haddington Road – “no pay increasing claims were sanctioned and no unauthorised allowances could be awarded”;

·       That the National Director to whom the Complainant reported was supportive of her situation and agreed to develop a business case whereby the Complainant’s post would be re-advertised at a higher salary level. Subsequently, on the 9th August 2017, the said National Director submitted a business case to the National HR Division of the DOH seeking approval to advertise the Complainant’s post through open competition at a salary of €143k which was in line with the Complainant’s pay parity claim. In the letter to the DOH of the 9th August 2017 the National Director stated:

“While all [of the national posts] were made on a grade to grade basis, there are differences between the remuneration of each; even though all hold equal levels of responsibility and seniority. Whilst this is in part due to different existing terms and conditions, it is further exacerbated by the addition of historic Clinical Directors Allowances……

“[The Complainant] is seeking parity of esteem with her colleagues through the payment of an allowance equivalent to the Clinical Director’s Allowance….I agree with [Complainant] that it is fair and appropriate that she receive a Clinical Director’s Allowance…..[The Complainant’s post] is a key post with regard to all of the work we require….There is a requirement for the grading of this post to be restructured so as to ensure it is attractive to doctors with skills and experience….

“….I am concerned that if the [Complainant’s] role is not re-graded and advertised for open competition at a higher salary that we will not attract high calibre staff with skills and experience to undertake this national work…..”.

·       Whilst the DOH’s  National HR Division was supportive of the business case, overall the DOH was not on the basis that an overall review of health provision was ongoing. This was the Crowe Howarth Review which the Respondent stated was “expected to deliver recommendations for…..restructuring…” including in respect of the status and salary of the holders of national posts in the sector and the Complainant’s post;

·       That following the publication of the Crowe Howarth Review, a new model for health provision is currently under consideration by the DOH and that the Complainant’s “substantive role and salary….will be subject to the outcomes of the final structure agreed”.

The Respondent outlined the background to filling a separate new post of Director. Initially the post was not filled following  advertisements in Spring and Autumn 2016 and June 2017. The Respondent stated that “Having exhausted all possible channels of recruitment… [it reviewed]….the factors which impacted upon the capacity….to fill this pivotal post, and proposed a revised approach to address these factors”. This revised approach included payment of the CDA allowance plus the applicable salary scale together with an expansion and revision of the role.   According to the Respondent “This role is substantially different and has considerably increased responsibilities from the previous….role”.

The Respondent stated that it submitted a second business case to the DOH on the 22nd January 2020 seeking sanction “for the payment of a salary of €145” for the Complainant’s post “and for this to be backdated to April 2014”. The Respondent requested the DOH to “reconsider [the] original business case for the application of the same salary conditions…..in order to bring remuneration for this role closer in line with the other 4 [national posts]”. The Respondent further stated that if approval was granted, the Respondent would then advertise the post and that the Complainant understood she would have to apply. The Respondent also agreed to cover the cost of arrears back to the 25th April, 2014 – ie the date the Complainant was appointed to the post. 

The DOH refused the Respondent’s request by letter of the 3rd February 2020 stating, inter alia, that sanction for a newly advertised post fell to be addressed as part of the wider body of work in progress in relation to the new health model and that it could not submit the Respondent’s proposal to DPER “…in isolation, to the broader developments in respect of rolling out of the new model of reform and restructuring…”. The DOH stated that it was not feasible to sanction an interim arrangement or submit a case to DPER for retrospective payment. The DOH’s letter also stated that the Department “would be optimistic that DPER will sanction/approve all posts that emerge in the final proposal and pay rates reflecting the roles and responsibilities arising”.

The Respondent stated that it cannot sanction a new grade or post for the Complainant at a higher salary or apply any allowance of the nature being sought, without the prior approval of the DOH and DPER. As such approval has not been forthcoming, it is the position of the Respondent that “… the issues can only ultimately be resolved in the context of any rollout of the provisions the ‘Crowe Howarth Report’ which deals with the future direction of Public Health Medicine, grading of doctors with the specification and overall delivery of service”. The Respondent stated that the proposed new health provision model will provide for a new management and leadership structure including the creation of the grade of Consultant which would address the Complainant’s pay parity concerns. The Respondent stated that it had already commenced negotiations with the IMO about these matters. Accordingly, as the Respondent is obliged to work within these constraints and within DOH parameters, it urged that the Complainant’s claim should not be conceded.

Having considered all the written and oral submissions, I am satisfied as regards the following:

·       That the facts and details pertaining to this dispute are largely not in contention in  terms of the Complainant’s appointment to the national post, her salary and the salary payable to her four colleagues, the expansion of her role in 2016 and as regards the various representations made by the Complainant to the Respondent about her pay dispute and the replies thereto;

·       That the disparity between the Complainant’s salary and that of the other four national post holders has existed since her appointment on the 25th April 2014;

·       That differences exist amongst the salaries payable to the Complainant’s four colleagues which the Respondent has stated are largely due to appointments having been made on a grade to grade basis and the payment of the CDA allowance;

·       That for the reasons outlined by the Respondent, in June 2018 a new post was sanctioned which attracted the CDA allowance which I’m satisfied, set a precedent as regards payment of the CDA;

·       That the Respondent appreciates the work of the Complainant and has demonstrated a willingness to reconcile the pay differences between her and her colleagues but that to-date this has not been approved by the DOH;

·       That a review of health provision has been completed and a new model is currently under consideration arising from which it is expected new pay structures will be put in place which will apply broadly across the sector and is expected to resolve the Complainant’s pay parity claim.

In light of the foregoing and having carefully reflected on all of the submissions, it is my view that it is unreasonable and inequitable to have maintained the Complainant at a salary level which is significantly below her peers. This is particularly so when the Respondent has fully accepted that the job description for all five national post holders are “identical” (save for reporting arrangements) and that the Complainant holds equal levels of responsibility and seniority with her four colleagues. Whilst the Complainant has stated she would object to her post being re-advertised, she has helpfully agreed to a review of her duties and responsibilities in the context of a resolution of her pay parity claim. In addition the Complainant has clarified that she is flexible as to the title of any additional allowance or as regards the method by which her salary would be increased.

In all the circumstances, I find that the Complainant’s pay parity claim should be conceded on a stand alone basis without further delay.

Section 13 of the Industrial Relations Act [1969-2019], requires that I make a recommendation in relation to this dispute and accordingly, I recommend:

1.       That the Complainant and Respondent immediately commence constructive and meaningful discussions with a view to resolving the Complainant’s pay parity claim and establish a formula to see her salary increased in overall monetary value by an amount not less than the current CDA allowance;

2.       That on the basis of the outcome of No 1, the Complainant receive full retrospective payment to the date of her appointment on the 25th April, 2014;

3.       That the Complainant’s pay parity claim be fully resolved in a timely manner – and no later than six months from the date of this Recommendation.

Pay Parity; Department of Health Review