FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : HEALTH SERVICE EXECUTIVE, (REPRESENTED BY NIAMH MC GOWAN B.L., INSTRUCTED BY COMYN KELLEHER TOBIN, SOLICITORS.) - AND - DR. FIDELMA MC KENNA DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No: ADJ-00018068 CA-00023224-001,002. The Adjudication Officer also found that with regard to her complaint of discrimination on the grounds of age in respect of equal pay that she had not established a prima facie case. The complaints were referred to the Workplace Relations Commission on 14th November 2018. The cognisable period for the purpose of the Act is 15th May 2018 to 14th November 2018. Background The Complainant has been employed by the Respondent since 2001 as an Area Medical Officer. In 2003 the entry grade to community health medical services changed from Area Medical Officer to Senior Medical Officer. From that time all entry level recruitment was to Senior Medical Officer. Area Medical Officers could apply to be promoted to Senior Medical officer through national competitions. In the area where the Complainant is based CHO2 which covers Galway Mayo and Roscommon a transfer panel exists which facilitates movement within CHO2. It is the Complainant’s complaint that the operation of that transfer panel indirectly discriminates against her getting a promotion on the grounds of age and that as she did the same work as a Senior Medical Officer, she was discriminated against on the age ground as she received a lower rate of pay. The Complainant did not have a representative but wanted to give evidence before the Court. The Complainant was sworn in at the commencement of her submission and advised that she could be cross examined on same. The Respondent was agreeable to proceeding in this manner. The Court explained to the Complainant the requirement of section 85A of the Act which requires her to establish facts from which it can be presumed that discrimination occurred before the burden of proof shifts to the Respondent. The Court also explained to the Complainant that in respect of indirect discrimination she would have to identify a comparator and the neutral provision, criterion or practise which she believes is resulting in indirect discrimination both on the promotion ground and the equal pay ground. Summary of Complainant’s case The Complainant accepted at the commencement of the hearing that in regard to her claim of discrimination on the age ground in respect of promotion that there was no breach within the cognisable period as set out in the Act. The Complainant in her evidence to the Court stated that she was doing the same work as her colleagues at Senior Medical Officer level and in fact she had a lot more experience that most of them. The Complainant’s complaint related to the fact that she was on a lower salary and she believes this was linked to her age. The Complainant identified two Senior Medical Officers as comparators. They are both in their thirties working in CHO2 but not in Galway and both ate on a higher salary than she is. It is the Complainant’s submission that she is interchangeable with both of them. The Complainant drew the Court’s attention to appendix three of her submission which contained a job specification for Senior Medical Officer. It was the Complainant’s evidence that she carried out all the roles identified in the section ‘Details of Service’. In respect of the section ‘Principal Duties and Responsibilities’ it was the Complainant’s evidence that she carried out all the duties listed under that’s section. As the Complainant was unrepresented the Court took a short break to allow the Complainant study the list and familiarise herself with the list prior to confirming under Oath that she carried out all the duties listed. When the hearing resumed the Complainant confirmed that she carried out all the duties listed in that section. It is the Complainant’s submission that the maintaining of the Area Medical Officer grade whose members are predominantly older that Senior Medical Officers is discriminatory on the ground of age in respect of remuneration. The fact that the Complainant operates a system whereby Senior Medical Officers get first refusal on any vacant positions at that level has meant she has been unable to secure an appointment to Senior Medical Officer in her own department. In the course of cross examination, it was put to the Complainant that four out of the five Senior Medical Officers in Galway were older than her and earned more than her, therefore, age could not be the determining factor for remuneration. It was the Complainant’s position that she was relying on the comparators that she had chosen. She confirmed that she had never worked with her comparators but knew they were doing the same work as she was doing. It was her evidence that her Principle Medical Officer Dr Flannery had given her their names and told her they were doing the same work as she was. The representative for the Respondent took the Complainant to appendix three of the Complainant’s own submission and the document that set out the Principal Duties of a Senior Medical Officer. In response to a number of questions from the Respondent’s representative the Complainant confirmed that she did not do the duties identified. The Complainant also confirmed that she reported to Dr McL Senior Medical Officer in respect of some issues, and she accepted that Dr McL carried out some duties that she did not carry out. In response to a further question the Complainant accepted that there was no difference between herself and Dr SM who was on the same panel for Senior Medical Officer as she was and who was only one year and eleven months younger than her. The Complainant accepted that age was not a factor in his getting the post. Dr SM had accepted a post in Roscommon and the went on the transfer panel to Galway. The Complainant accepted that the difference in remuneration arose because she exercised a geographical preference in terms of accepting a post as a Senior Medical Officer. Summary of Respondent’s case It is the Respondent’s submission that the difference in the rate of pay arises from the fact that Area Medical Officers and Senior Medical Officers, are different grades with different pay scales. In fact, the Complainant’s pay scale is higher than the Senior Medical Officer pay scale at one point. The difference in pay is reflective of when you joined the service i.e Area Medical Officer prior to 2003 and Senior Medical Officer post 2003 and there is no link to age. There is very little difference in the ages of Senior Medical Officers and Area Medical Officer’s in the Galway area. As confirmed by the Complainant in her evidence there are differences in the roles of Area Medical Officers and Senior Medial Officer. It is of note that the comparators she chose do not work with her in Galway and in fact they only knowledge she has in respect of the roles they carry out was given to her by a third party. The issue here is not that the Complainant was discriminated on age grounds, the Complainant could be a Senior Medical Officer anywhere in the country, but she has opted not to take up such a position as she wants to be promoted in her own department. It is the Respondent’s submission that the reason the Complainant is earning less is because she exercised a personal choice in that she does not want to take up a Senior Medical Officer post outside of Galway. It is the Respondent’s submission that the Complainant has not established a prima facie case of discrimination. The applicable Law Section 6 of the Employment Equality Acts 1998 to 2015 states: (1) (a )the Act sets out for the purpose of this Act discrimination shall be taken to occur where (a) a person is treated less favourably than another person is, has been or would be in a comparable situation… (2) (F) sets out that as between any 2 persons that they are of different age (3) ( c ) offering a fixed term contract to a person over the compulsory retirement age for that employment shall not be taken as constituting discrimination on the age ground if a) it is objectively and reasonably justified by a legitimate aim b) the means of achieving that aim are appropriate and necessary. Section 85A of the Acts, Burden of Proof states: (1) 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. Section 22 of the Acts, Indirect discrimination on the gender ground (1) (a) Indirect discrimination occurs where an apparently neutral provision [would put] persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer. (b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B) unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Section 31 of the Acts Indirect discrimination [(1) Subsections (1) and (1A) (inserted by section 13 of the Equality Act 2004) of section 22 apply, in relation to C and D as they apply in relation to A and B, with the modification that the reference in subsection (1) 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 Discussion It is for the Complainant in the first instance as set out by this Court in Mitchell v Southern Health Board [2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which she relies. In Melbury Developments v Arturs Valpeters EDA0917 the Court stated “ Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. The Court, having carefully considered the facts finds that in the circumstances of this case the Complainant has not made out a ‘prima facie’ case of discrimination based on age in respect of remuneration. The Complainant does not dispute that there is no barrier to her applying to go on the transfer panel and or applying for promotion. The Complainant’s complaint is that she is doing the same work as her two named comparators and getting paid less. However, in her evidence she confirmed that there were a number of duties that Senior Medical Officer’s carried out that she did not carry out and that on certain issues she reported to a Senior Medical Officer. The Complainant also confirmed that she personally had not worked with her comparators or engaged with them about the duties they carry out. It was the Complainant’s evidence that she was relying on information given to her by a third party. The Complainant accepted that she could have been promoted to Senior Medical Officer and the reason she had not been promoted was not linked to her age but to her decision to decline to accept at post outside of her own department. Based on the Complainant’s own evidence it is clear therefore that the reason she is on lower remuneration is because she has opted not to take a Senior Medical Officer position. It is clear to the Court that a prima facie case has not been made out and therefore her appeal must fail. Determination The Court determines that the Complainant has not established a breach of the Act in the cognisable period in respect of her claim of discrimination on the grounds of age related to promotion. The Court also determines that the Complainant has not established a prima facie case of discrimination on the grounds of age in respect of remuneration. The appeals fail. The Decisions of the Adjudication Officer are upheld. The Court so Determines.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
