FULL RECOMMENDATION
SECTION 77 (12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : HEALTH SEVICE 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 No:ADJ-00013657 CA-00017516-001. 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. It is the Complainant’s complaint that she does the same work as Senior Medical Officer’s but receives less pay. It is her submission that the reason she receives less pay is linked to her age, as Area Medical Officers in general are older than Senior Medical Officers. Summary of Complainant’s case The Complainant submits that she is 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 relates to the fact that she is on a lower salary and she believes this is 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 are on a higher salary than she is. It is the Complainant’s submission that she is interchangeable with both of them. The Complainant submitted that two-fifths of her current role is carried out by a Senior Medical Officer. It is the Complainant’s submission that the operation of the transfer panel meets the criteria of a provision or practise that indirectly discriminates. It has resulted in younger people getting promoted to Senior Medical Officer in her location. The Complainant in her evidence in chief told the Court that in February 2020 there was an agreement to fill point four of her role at Senior Medical Officer level as she was taking on other work. The position was filled from the legacy transfer panel by a Senior Medical Officer. It is the Complainant’s evidence that she does all the same work as a Senior Medical Officer and she sign’s off on work that requires a Senior Medical Officer signature such as immunisation documents and primary medical certificates. It is the Complainant’s evidence that she provides induction training to new Senior Medical Officer’s and that there is no difference in the roles. The Complainant drew the Court’s attention to a document which showed that some CHO areas did not have any Area Medical Officers and, it is her submission that this supported her contention that the grades are interchangeable. It is the Complainant’s evidence that in respect of her submission around the average ages of Area Medical Officer’s she knows all the Area Medical Officer’s in Galway and their ages. In respect of Senior Medical Officer’s in CHO 2 she asked some of them their ages and others she looked up the Medical Register and worked on the assumption that they were about 24 when they qualified. The Complainant also relied on the data that her Principal Medical Officer Dr Flannery collected. It was the Complainant’s evidence that she was on a panel to become a Senior Medical Officer but was only interested in a position in her own area Galway. The operation of the transfer panel meant that vacant posts in Galway were never offered to people on the national recruitment panel. The Complainant submitted that since 2003 the use of the transfer panel is indirectly discriminatory. In response to a question under cross examination the Complainant confirmed that she had benefitted from being on the transfer panel in the past. The Complainant accepted 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 accepted that she could have done something similar, but it was her position that she wanted to be promoted in Galway without having to go somewhere else first. The Complainant accepted that this was a personal preference and not linked to her age. In response to a question about her comparators the Complainant confirmed that she did not ask her comparators their ages or what work they did. She worked out their ages from the Medical Register and knew from her Principal Medical Officer that she did the same work as them. In respect of the forms that she gave evidence that she signed she accepted that they would be counter signed by a Senior Medical Officer, but it was her evidence that was because the forms required two signatures. It was put to the Complainant that the transfer panel operated on a grade for grade basis and that if she had accepted a Senior Medical Officer post in either Mayo of Roscommon, she could have gone on the transfer panel in the same manner she had previously and when a vacancy arose, she could transfer back to Galway as a Senior Medical Officer. The Complainant accepted that she could have applied for posts in Mayo and or Roscommon, but she did not as she wanted to be promoted in Galway. In response to a question from the Court as to where she believed the entitlement to be promoted in her own area arose from, the Complainant declined to respond. Dr Mary Flannery Principal Medical Officer in her evidence confirmed that Dr Kyne reported to her. It was her evidence that she does not believe that there are significant differences in the work of an Area Medical Officer and a Senior Medical Officer. It was her evidence that she believes they are interchangeable and do like work and in her area, she does not distinguish between them except for the Administrative Senior Medical Officer who has responsibility for things like annual leave and other administrative issues. Dr Flannery accepted that practises in respect of the roles of Senior Medical Officer and Area Medical Officer differ from area to area. Dr Flannery confirmed that she assigned the function of overseeing induction training for new Senior Medical Officer’s to Dr Kyne and that Dr Kyne reported directly to her. Under cross-examination Dr Flannery accepted that it was her decision not to differentiate between the grades in her area, but it could be different in other areas. In respect of the questionnaires, Dr Flannery submitted that she circulated the questionnaire to her colleagues in other CHO areas but did not know how they gathered the information. When she got the questionnaires back, she passed them on to the Area Medical Officers. Dr Flannery accepted under cross examination that age was not a factor in respect of accessing the transfer panel or applying for a post of Senior Medical Officer. She also accepted that once panelled a person can apply for any post at that grade that becomes available. The next witness put forward by the Complainant Dr Colette Madden gave evidence that she was an Area Medical Officer up to 2005. In 2010 she applied for and was successful in getting a Senior Medical Officer position. It was her evidence that there was no discernible difference in the job she did as an Area Medical Officer and the job she is currently doing as a Senior Medical Officer. The final witness for the Complainant Dr O’Hara stated that she moved from Area Medical Officer to Senior Medical Officer after she was successful in a competition and that her duties are the same. Summary of the Respondent’s submission It is the Respondent’s submission that there is no discrimination. There are two grades with two pay scales. The Respondent accepts that there are some overlaps in the duties but does not accept that they do the same duties and are interchangeable. The Complainant can and has applied for a position as Senior Medical Officer but has declined to take a post anywhere except in Galway. If the Complainant took a position as Senior Medical Officer, then she would be on the higher rate of pay. The Complainant could also go on the transfer panel to transfer back to Galway if that was what she wanted. The Complainant has chosen not to do that. The Respondent questions the accuracy of the unofficial census of the age profile of Area Medical Officer’s and Senior Medical Officer’s that the Complainant is relying on. The Respondent’s information suggests that the age profile of Area Medical Officer’s in Galway and Senior Medical Officer’s in Galway is very similar. The reason the Complainant is on a lower salary is linked to the fact that a) she started work before 2003 and b) she has declined to take a position as Senior Medical Officer unless it is in Galway. There is no link between her salary and her age. The date of entry to employment or to a grade is not one of the discriminatory grounds. The Complainant has had the opportunity to take up post at Senior Medical Officer but has declined to do so for geographical reasons which she is entitled to do. The operation of a transfer panel within CHO2 is a local arrangement which the Complainant has availed of in the past. While there is a national recruitment service there is not a national recruitment policy as set out by the Complainant in her submission. Dr Evan Murphy Principal Medical Officer in CHO9 in his evidence to the Court did not accept that the role of Area Medical Officer and Senior Medical Officer are interchangeable. It was his evidence that Area Medical Officer is a field job and that in areas where there are no Area Medical Officer’s, the work is carried out by Public Health Nurses. It was his evidence that the Senior Medical Officer is a service job and would only deal with complicated cases. In respect of the census circulated by Dr Flannery it was his evidence that he filled in the form by guesswork as he would not know the ages of the Area Medical Officer and Senior Medical Officers who work for him. In summary the Respondent submitted that the reason the Complainant is on a lower salary is not in any way linked to her age. The Complainant has chosen not to take up a position at the higher grade in pursuit of her personal preference not to take up a position outside of Galway. 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’s complaint is that she is doing the same work as her two named comparators who are Senior Medical Officer’s and getting paid less. The Complainant 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 and is not in any way linked to her age. 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 prima facie case of discrimination on the grounds of age in respect of remuneration. The appeals fail. 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. |
