FULL RECOMMENDATION
SECTION 77 (12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : HEALTH SERVICE EXECUTIVE (REPRESENTED BY NIAMH MC GOWAN B.L., INSTRUCTED BY COMYN KELLEHER TOBIN, SOLICITORS) - AND - KARLA KYNE (REPRESENTED BY ALASTAIR PURDY & CO,SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision Nos: ADJ-00021516 CA-00028215. Background The Complainant has been employed by the Respondent since 1986 and worked as an Area Medical Officer since in and around December 1989. 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. Summary of Complainant’s case The representative of the Complainant submitted that the national recruitment policy of the Respondent provides that all vacated Area Medical Officer or Senior Medical Officer posts are referred to the National Recruitment Services (NRS) to be filled. The NRS runs competitions and fills the vacancies from panels it creates. However, in Galway where the Complainant works Area Medical Officer previously and Senior Medical Officer posts currently are filled from the transfer panel. The Complainant submitted that the operation of a transfer panel in CHO2 (Galway Mayo and Roscommon) for the filling of posts at Senior Medical Officer grades discriminated against Area Medical Officer’s like herself. The grade of Area Medical Officer is being phased out and with the odd exception there has not been any recruitment to that grade since 2003. Area Medical Officers tend on average to be older than Senior Medical Officer’s. It is the Complainant’s submission that in December 2018, point four of a Senior Medical Officer permanent post became vacant in the Galway area. This was filled in February 2019 by Dr SM who transferred in from Roscommon. It was the Complainant’s submission that the post should have been filled from the Senior Medical Officer recruitment panel. The Complainant had in 2015 secured a place on the NRS Senior Medical Officer panel and had turned down posts in other locations as she was waiting to be offered a post in Galway. However, because of the practise of offering all vacancies at Senior Medical Officer level, in the first instance by way of the transfer panel to staff who are already at the grade, the vacancy was filled by Dr SM who transferred in from Roscommon. The resulting vacancy in Roscommon was filled from the recruitment panel but the Complainant had no interest in that vacancy. This happens on a regular basis as most people are looking to transfer to Galway rather than Mayo or Roscommon. The vacancies in Galway end up being filled from the transfer panel and this places people like herself who wished to be promoted within their own locality at a disadvantage. It is the Complainant’s submission that the neutral provision criterion or practise is the transfer panel as it indirectly discriminates against Area Medical Officers who are an older category of worker. Summary of Respondent’s case. The Respondent submitted that the practise in CHO2 in respect of all permanent vacancies is that the vacancy is offered in the first place to the transfer panel which consists of Doctor’s already at the grade of Senior Medical Officer. A transfer panel operated for Area Medical Officers as well but as the numbers in that grade are declining and there is no recruitment to that grade there is no demand for the operation of the panel. If nobody on the transfer panel takes the post it is then offered to the next person on the recruitment panel. It is the Respondent’s submissions that the transfer panel is a neutral provision. To get on to the transfer panel you have to be a Senior Medical Officer in CHO2. There is no age- related barrier to getting on to the transfer panel. The Complainant does not dispute that she has benefitted from being on the transfer panel in the past. The Complainant accepts that Dr SM was an Area Medical Officer in more or less the same age bracket as she was, who had taken a promotion to Senior Medical Officer in Roscommon before transferring back to Galway as a Senior Medical Officer. The Complainant accepts that she could have done something similar, but it is her position that she wants to be promoted in Galway without having to go somewhere else first. The Complainant accepts that this is a personal preference and not linked to her age. The issue in this case is not age discrimination but one of personal choice. The Complainant has chosen not to take Senior Medical Officer posts in CHO2 and then apply to transfer back to Galway instead she has clearly indicated that she wants the system changed so she can get promoted without having to move from her current location. It is clear that there is no obstacle directly or indirectly linked to age that prevents the Complainant from being promoted to Senior Medical Officer and going on a transfer panel to a location of her choice. While the Complainant has stated that the process discriminates against Doctors in the 52 to 83 age group. All Senior Medical Officer’s in the Galway area with the exception of one are over the age of 52 much the same as the Area Medical Officers in the same location. It is therefore difficult to see the basis for this claim. Age is not a relevant consideration or in any way linked to the national recruitment panel for Senior Medical Officer’s or to accessing the transfer panel. Therefore, it is the Respondent’s submission that the Complainant has not established a prima facia 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. 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 cannot get promoted in her own department . The Complainant has not identified where she believes the entitlement to be promoted in her own department arises from or identified a cohort of workers who have such an entitlement. In response to a question from the representative for the Respondent the Complainant accepted that the reason she had not been promoted was not linked to her age but to her decision to decline to accept a post outside of her own Department. It is clear to the Court that no prima facie case has been made out and therefore her appeal must fail. Determination The Court determines that the Complainant has not established a prima facie case of discrimination in respect of promotion on the grounds of age. The appeal fails. The Decision of the Adjudication Officer is upheld. The Court so Determines.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
