Complainant

Respondent

Anonymised Parties

A Doctor

A Healthcare Organisation

Representatives

Natasha Hand of Richard Grogan & Associates Solicitors

Represented by Mary Fay BL instructed by Pembroke Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00034490-001

05/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034490-002

05/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034490-003

05/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034490-004

05/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00034490-005

05/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00034490-006

05/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00034490-007

05/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00035336-001

10/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00034490-008

10/03/2020

The complainant commenced employment with the respondent on 1 August 2006. The complainant contends that she was discriminated against in relation to her pay on grounds of race and gender under the employment equality legislation. The complainant withdrew her claim of discrimination on grounds of religion under the Employment Equality Acts at the commencement of the hearing. The complainant was born in India and has Irish citizenship.  The complainant has lodged claims under the Terms of Employment Information Act, the Organisation of Working Time Act and the Employment Equality Acts. The complainant has also lodged a claim of victimisation.

Terms of Employment (Information) Act, 1994

The complainant states that she did not receive a statement in writing setting out her terms and conditions of employment “which complied with section 3 of the Act”. It was submitted that Section 3(1)(g) stipulates that an employee may under section 23 of the National Minimum Wage Act 200 request from the employer a written statement of the employees average hourly rate of pay for any pay reference and this is not provided for in the complainant’s terms and conditions of employment. It was also stated that terms and conditions in respect of pensions and pension schemes were not included. It was also submitted that the complainant did not receive a document which set out the gender equality clause. The complainant further stated that the contract does not give a leave year. It was submitted that the contract does not include the employee’s rights under section 11, 12 and 13 of the Organisation of Working Time Act for rest breaks.

Organisation of Working Time Act – Section 12

The complainant states that she did not receive adequate rest breaks. The complainant works Tuesday and Wednesday 9.30am to 5 pm, Thursday 2 pm – 7.30 pm and Friday 9.30 am to 4 pm. The complainant also works alternate Saturdays 10.00 am – 4.00 pm. The complainant contends that there is lunch time allotted in the diary and has previously raised the issue that she was not getting a proper break. The complainant states that she was told that she takes longer with clients and that is why her breaks are shorter. The complainant maintains that some days she gets a 30 minute break and other days it is less than 30 minutes. The complainant outlines that this has been a continuous breach.

Organisation of Working Time Act – Section 21

The complainant states that she did not receive her entitlement to her public holidays on 7 October, 25 and 26 December 2019 and 1 January 2020. The complainant states as she is not being paid the correct rate of pay, she did not receive her full entitlements under section 21 of the Act in this regard.

Organisation of Working Time Act – section 20

The complainant submitted that she did not receive her annual leave pay in accordance with Section 20(2)(a) of the Act.

Employment Equality Act

The complainant submits that she commenced her employment with the respondent on 1 August 2006. She states that she is the longest serving doctor with the respondent except for her Medical Director. The complainant states that for years she has provided all of the services yet her colleagues who did not provide all of those services were paid the same rate of pay. The complainant contends that in 2015, she became aware that from 2006 to February 2015, she was being paid one hour less per week than her comparators. The complainant claims that she was being paid for 7 hours, while her colleagues were being paid for 7.5 hours. The complainant submits that she questioned her line manager regarding the difference and was advised that as the hours of work were 9.30 am – 5.00 pm and due to the fact the complainant’s clients would arrive in to see her at 9.45 am and leave at 4.45 pm that this was the reason for the pay differential. In 2015 the complainant wrote to the Financial Controller regarding this difference and subsequently her pay was calculated going forward.

The complainant states that in early December 2018, she was emailed by the CEO advising that new legislation was to be approved providing for abortion services and asking the complainant to confirm if she would be involved in the training of such service. The complainant emailed her Medical Director and advised that she would not be partaking due to conscientious objection. The complainant outlines that in 2018, new legislation came into force and provided for abortion services to be available in certain circumstances from 1 January 2019. In this regard, the respondent began offering such services. The complainant states that she opted out of offering part of this service being the termination of pregnancy known as (medical TOP); the complainant does however provide all post (TOP) services. The complainant outlines that she opted out of offering the (TOP) service due to conscientious objection which is provided for under Section 22 of The Health (Regulation of Termination of Pregnancy) Act 2018.

The complainant contends that in and around September 2019, she became aware that there was a disparity in respect of her pay vis a vis that of her colleagues. The complainant states that she emailed the CEO seeking to have matters rectified. The complainant received a reply and was directed to take the matter up with her Line Manager. The complainant did so and her Line Manager Ms. S advised the complainant that if she carried out the full range of duties as her colleague, she would be given the same terms and conditions. Ms. S set out in an email to the complainant that only those doctors who had taken on the additional (TOP) service were being paid more. The complainant submits that she was never advised until she queried the pay disparity with her Line Manager that there was to be a higher rate of pay given to those that undertake the (TOP) services.               

The complainant has identified two comparators who she alleges are paid more than her on a discriminatory basis, Dr. A and Dr. B. The complainant is making claim of discrimination on grounds of race and gender on the basis that Dr. A who is male, is Irish and that the complainant is Indian/Irish.  The complainant alleges that she has been discriminated against on grounds of race in relation to the difference in pay vis a vis her colleague Dr. B who is female.

Victimisation

The complainant alleges that following submitting claims under the employment equality legislation, she has been subjected to victimisation by the respondent. The complainant outlines that on Tuesdays, she works both morning and afternoon sessions and the other doctor works in the morning sessions. The complainant states that on 11 and 18 February 2020, there were two doctors on duty in the morning session. The complainant outlines that it is the practice that a nurse assists the doctor. The complainant states that on these dates, one nurse assisted the other doctor. The complainant states that the other nurse was instructed by the Clinic Manager Ms. S to attend to administration and not to assist the complainant. The complainant maintains that on 18 February 2020, the nurse informed Ms. S that she had very little administration work and could assist the complainant in the morning and was further instructed not to assist the complainant. The complainant contends that she was left in a situation of doing both her work and the nurse’s work in spite of having two nurses in the clinic. The complainant states that she was victimised by the respondent for having made a claim of discrimination under the employment equality legislation.

The respondent confirmed that the complainant commenced employment with the organisation on 1 August 2006. It submits that prior to 2011, the respondent had three pay levels for doctors. Level 1 was the lowest pay rate and was generally paid to doctors new to the family planning provision. For many years, the respondent was the main education and training centre for doctors wishing to become proficient in family planning. The respondent stated that it was common for doctors to take up employment with the organisation to gain these skills. Level 2 was a higher rate paid to doctors who had become proficient in family planning after a certain length of time working with the organisation or after they had become proficient in most forms of sexual and reproductive health provision. Level 3 was the highest pay rate and was paid to the medical director to compensate for additional medical responsibilities.

The respondent submits that a very small number of doctors who had extensive family planning experience could also avail of additional payments if they became “trainers”. This required the completion of an external “family planning training course”. Entry to the trainers course required evidence of extensive experience. There was also a specialist payment for doctors who provided vasectomy procedures (as distinct from vasectomy counselling). The respondent’s doctors including the complainant carry out vasectomy counselling as part of their routine work, however the surgical procedure itself is carried out by specialist doctors who received a higher rate of pay to compensate for the higher insurance and additional skills involved. The respondent states that the complainant is not trained to as a vasectomy doctor and has never carried out vasectomy procedures.   

The respondent submits that the complainant commenced employment in 2006 and her contract records an annual salary for Monday to Friday (30 hours) and was in line with Level 1, as someone new to the organisation. However, premiums were paid in addition to the above rate for working every second Saturday and Sunday which brought up her average pay. The respondent asserts that by letter dated 9 June 2009, it wrote to the complainant moving the complainant to Level 2 pay and states that this was the rate of pay used in her application for a work permit to the Department of Trade and Employment at that time. The respondent states that the complainant continued to receive a fixed additional payment for Saturday or Sunday working.

The respondent asserts that in January 2011, emergency contraception became available over the counter in Irish pharmacies. It states that there was a 20% drop in the number of clients requiring the respondent’s services in Tallaght. The respondent submits that overnight, the focus of its work shifted to the provision of coils and implants, or LARCs (long acting reversible contraceptives) rather than emergency contraceptive pills and repeat pill prescriptions. This reduced the respondent’s requirement for doctors who could only provide the basic contraceptive services (i.e. repeat pills and emergency contraception). The respondent states that it did not recruit doctors between 2011 and 2013. The respondent maintains that by 2013, the Irish College of General Practitioners had integrated contraception into their GP training course, and it was possible for the respondent to recruit doctors with the full range of skills without having to provide in depth training. Consequently by 2013 the Level 1 pay rate effectively became defunct and from that point forward, the respondent recruited doctors at the Level 2 pay rate.

The respondent states that due to the economic recession, all doctors with the organisation consented to a pay cut in 2012. The cut for the complainant’s grade was 6% and she signed consent to this deduction in 2012. The respondent states that it contacted the complainant in 2017 regarding her contract of employment. It states that the complainant stated that she had never received the 2009 document and insisted she remain on her 2006 contract. The respondent states that following negotiation and with the benefit of independent legal advice, the complainant signed a new contract with the respondent in July 2017.  The respondent submits that in early 2020, it introduced a new pay rate for doctors providing early medical abortion care. This was higher than the Level 2 rate. The standard Level 2 rate was reviewed a few months later as part of a benchmarking exercise conducted by a Consultancy company. It resulted in a 5% increase for the complainant in two phases of 2.5% and 2.5%, noting that the increase was applied to the reduced 2012 rates. 

Claim under Terms of Employment (Information) Act 1994

The respondent states that it can be noted as part of the negotiations of the complainant’s 2017 contract, she confirmed she took legal advice on her entitlements at the material time. The respondent maintains that no issues were raised by the complainant in 2017 when her contract was being renegotiated or by her solicitor. In respect of the statement of an average hourly rate of pay, the hourly rates are clearly stated in her 2017 contract. The respondent submits that it is entirely disingenuous to suggest that the complainant, who is in receipt by her own admission of an hourly rate over 4 times that of the current national minimum wage and a full-time equivalent wage for a 40 hour week of over €95,000 per annum has been in any way prejudiced in this regard. The respondent submits that such a statement would have no practical significance for the complainant.

The respondent contends that both the 2006 and 2017 contracts of employment refer to the respondent operating a PRSA scheme to which the respondent makes no contribution. The respondent outlines that the complainant acknowledges in her submission that irrespective of whether an equality and/or non-discrimination clause was included in the contract of employment, one is implied and this is not disputed by the respondent. The respondent asserts that an express commitment to equality is included in the respondent’s employee handbook.

The respondent states that while the complainant refers to not being paid for her annual leave in advance and not always receiving her entitlement to her breaks under the OWT Act; it is clear therefore that the complainant is aware of what her entitlements are in this regard. The respondent states that they are also referenced at paragraph 10 of the complainant’s contract of employment. The respondent contends that the complainant if fully aware of her working hours. It states that her normal working hours are referred to in her contract of employment as 25.5 hours plus alternate Saturdays.

Claims under Organisation of Working Time Act, 1997       

Section 12 – rest breaks

The respondent’s medical clinics are organised on a diary basis, with morning, lunch and afternoon breaks built into an electronic diary schedule. Medical consultations are provided to clients on an appointment basis. The respondent submits that in the complainant’s submission, she acknowledges that there is a lunch time allotted in the diary for her break, during which no appointments are scheduled. The respondent states that the complainant contends that some days she gets a 30 minute break and other days it is less than 30 minutes. The respondent submits that the complainant did not raise an issue with not receiving breaks despite having regular supervision meetings with her. The respondent highlights a screen shot from its appointment diary. The screen shot shows that tea/lunch breaks are built into the complainant’s daily work schedule. The respondent contends that if any member of staff in the clinic works time in addition to these hours, the practice is to record them in the “payroll book” for review by the clinic manager.

The respondent states that the complainant must prove alleged breaches within the period of 6 months prior to the issue of the within claim on 5 February 2020 and that it is only this period that is relevant. The respondent submitted documentation to the WRC in this regard. The spreadsheet demonstrates that lunch and tea breaks were scheduled for the complainant during this period. The respondent further states that the appointment times allocated to the complainant are consistent with that provided to all other doctors for each procedure. The respondent states that there is no identifiable reason why the complainant should not have taken those breaks nor was any issue regarding breaks raised with her manager at this time. The respondent highlights that fairly consistently, there is “free time” marked on the schedule. This relates to time when no appointment has been booked in for the complainant. This happens when there is no client demand for particular appointment times. In addition, regularly “DNA” is marked on the schedule. This relates to time when a client did not turn up for scheduled appointments. The respondent states that doctors usually use this time to catch up on administration. It states that administration is also built into the appointment diary in advance of knowing if there will be “free time” or “DNAs”.  No appointments are scheduled during breaks or administration time.

The respondent states that the complainant would occasionally come in early on Thursdays to complete administration work, if this allotted time was eaten into by patient overruns and claim overtime for this work in the salary book. The respondent maintains that the complainant has considerable autonomy over when she takes her breaks. The respondent states that the clinic diary is monitored on a daily basis and amendments are made on a daily basis to ensure that clinics run smoothly. The respondent submits that it is unaware of any reason why the complainant would not have had time to take the breaks scheduled. The respondent states that the only occasion of note was on one occasion, Tuesday 17 September 2019, when the complainant’s morning tea break was over written and an appointment written into her tea break slot. However, approximately one hour later, there are no appointments scheduled for the complainant for 30 minutes in advance of her lunch break. The respondent submits that perhaps some informal agreement was made with one of the receptionists, to swop the allocated tea break in return for not filling the “free time” with an appointment. The respondent states that it is not clear if this was done to accommodate a client, or to accommodate the complainant but either way this could not have been done without the complainant’s consent. The respondent states that if this was an issue for the complainant in actually taking her break, it was not raised with the manager.

The respondent refers to the complainant who alleges that she was advised, by a person neither identified nor named, on a date unspecified “that she takes longer with clients and that is why her breaks are shorter”. The respondent submits that this is not true and no such statement was made. The respondent contends that it did raise concerns with overruns causing patients to walk out of the clinic with the complainant some 12 years ago, in 2008 as part of a performance review in September 2010 but it was never stated that she was to work through her breaks to address this. Rather, the respondent states that it addressed this through management of the diary with fewer appointments and extra administration time in the diary before lunch and prior to the end of the working day. The respondent submits that notably, issues with breaks were not mentioned by the complainant on either occasion in 2008 or 2010. In respect of Section 25 records, the respondent submits that it does not operate a clock-in / clock- out system. It states that the complainant’s breaks were notified to her and regularly scheduled in the appointment diary for the complainant, which allowed for additional time with patients and possible overruns.

Organisation of Working Time Act         

Section 21 – Public Holidays

The respondent states that the complainant’s complaint is that she was not paid the correct rate of pay. It states that consequently there is no breach of the 1997 Act and the complaint falls to be determined under the Equal Pay/Discrimination claim.

Section 20 – annual leave pay

The respondent submits that the complainant has not identified any relevant annual leave in the 6 month period prior to the submission of the claim form in which she alleges that she was not paid in advance and must demonstrate a claim within time before any adjudication on the merits can be engaged in. The respondent states that without prejudice to the foregoing, the complainant accepts she was paid for her annual leave as part of monthly payroll, but just not in advance of taking her leave. The respondent states that its payroll operates, as is common in most employments of this type, by paying employees on the last Friday of every month, in arrears. The respondent states that the complainant has never made a request for advanced holiday payment from the respondent prior to the submission of this claim. The respondent submits that the caselaw cited by the complainant in ADJ-0014935 acknowledges that such a request for advanced holiday pay would be a more common feature of weekly pay systems which are now a distant minority in industry and also supports no award of compensation in circumstances where no financial loss has accrued to the employee.

Claim under the Employment Equality Acts

The respondent submits that with regard to the alleged disparity in pay that the complainant says she discovered in September 2019, it sets out the following background.

The respondent states that a significant portion of work undertaken by doctors employed by it relates to contraception. This includes scripts for the contraceptive pill, to more involved procedures involving long-acting reversible contraceptives (LARCs). From 2011 the organisation’s doctors would also be involved in prescribing the “morning after pill” and the respondent always provided after care services to patients (including termination after care) for any terminations carried out lawfully within the State or in other jurisdictions. The respondent states that it is not in dispute that the complainant provided all of the foregoing care to patients and the complainant never raised any objection to do so on religious or other grounds.

The respondent states that abortion care became legal at primary care level following the signing into law of the Health (Regulation of Termination of Pregnancy) Act 2018. Section 22(1) of the Act provides that nothing in the Act “shall be construed as obliging any medical practitioner, nurse or midwife to carry out, or to participate in carrying out, a termination of pregnancy in accordance with  section 9, 11, or 12 to which he or she has a conscientious objection”.   The system was an “opt in“ one for medical practitioners with practitioners having to commit to in writing to follow the HSE’s model of care for the provision of such termination services and be named a designated qualified person to provide this service. The respondent states that it contacted the complainant and she was asked to confirm whether she would be involved in the training with a view to the provisions of such a service and the complainant replied that she was not legally obliged to do so and referred to the “conscientious objection” provision. The complainant also verbally advised the respondent that she would not be opting to provide such services for “personal reasons”. The respondent states that the complainant and one other doctor, Dr. A chose not to opt in to provide these services. Dr. A cited personal circumstances. The respondent respected the wishes of Dr. A and the complainant in this regard and at no stage were they required to deal with patients seeking termination services and no such appointments were scheduled for them to deal with.

The respondent states that in late December 2018 and prior to commencement of the Act, the respondent’s doctors asked for additional remuneration in return for providing early medical abortion (EMA) services. This was agreed to by the respondent in January 2019. The increase reflected the additional skill required and to achieve the legitimate objective of having sufficient doctors opt in to provide a new service to meet demand and service the needs of patients. The respondent states that at this time, requests were made by other staff for increases in pay. The respondent states that it engaged in a benchmarking exercise and employed a Consultancy company who recommended that doctors doing similar work to the doctors at the respondent organisation should be paid on a scale for a FTE position with a mid-point recommendation on that salary scale. The respondent states that the FTE rate includes all supplements for working Saturdays and additional allowances for doctors with a GP qualification. The respondent states that it accepted the recommendations of the benchmarking exercise which led to a phased increase for the complainant of 2.5% in May 2019 and 2.5% in September 2019.

Comparators   

The complainant has identified two comparators who she alleges is paid more than her on a discriminatory basis although it would appear on different grounds; Dr. A and Dr. B. The respondent submits that Dr. A who is male and Irish did not opt in to provide EMA services. The respondent asserts that in relation to Dr. B who is female, it appears from the complainant’s submission that she is basing her claim solely on the basis that Dr. B is Irish and that the complainant is Indian/Irish.  Although no gender claim was made in the complaint forms, in subsequent written submissions, the complainant alleges the difference in pay was due to the fact the complainant is female and Dr. A is male. The respondent states that it objects to the introduction at submission stage to an entirely new discriminatory ground not featured on the claim form and therefore not properly before the WRC. The respondent states that without prejudice to the foregoing, it is accepted that Dr. A has an hourly rate of €50 per hour but it is not accepted that he is paid more than the complainant as alleged, as his contractual conditions are not the same or comparable to the complainant’s. As part of the benchmarking exercise, the consultancy company recommended that the respondent calculate hourly rates of pay on an hour worked basis, rather than on a working hours basis. Shortly thereafter, Dr. A was reorganising his contract and moved to an hours worked basis and as such does not receive pay for tea breaks/lunch breaks. The respondent states that the complainant continues to be paid for breaks and lunch, as per her contractual entitlements, and on a full working day is scheduled to have one 15 minute tea break and a lunch break of 45 minutes. The respondent states that if the complainant wishes to vary her contract to move to an hours worked basis for an hourly rate of €50 like Dr. A this will be facilitated by the respondent however to date no such request has been made.

In respect of Dr. B, both Dr B and the complainant are paid for their tea breaks/lunch breaks. The respondent states that it is not in dispute that Dr. B is contracted to provide EMA services and the complainant is not. The respondent states that this additional work undertaken by Dr. B accounts for the difference in pay as Dr. B is remunerated at a lightly higher rate to reflect the additional knowledge, skills and complexity required in the provision of this service. The respondent submits that the complainant herself accepts that the reason for the differential in pay where she says in her submission “the only reason for the differences in payment arises out of the claimant’ s lawful refusal to provide the (TOP) service”. The respondent submits that the complainant also acknowledges that she was advised by the respondent that her pay would be increased in line with Dr. B in terms of also providing EMA services. The respondent submits that the difference in pay was clearly related to the additional work undertaken by Dr. B. The respondent states that this is further corroborated by the fact that this was an additional pay collectively agreed for all doctors providing EMA services and was not specific to, or personal, to Dr. B’s performance of these services. The respondent outlines that this reflected the additional skill and care involved over and above that routinely provided, which was also reflected in the Department of Health rates for the undertaking of such services.    

Claim of Victimisation

The respondent refutes the claim of victimisation. In this regard the complainant alleges that she was victimised following submitting her claims on two occasions 11 and 18 February 2020. The respondent submits that while the first complaint was submitted to the WRC on 5 February 2020, the WRC did not advise the respondent of the complaint until the cover letter dated 14 February. This was after the alleged first instance of alleged penalisation on 11 February 2020. The respondent notes that the second alleged “incident” on 18 February is said to be a repeat of the first instance. The respondent further submits that while the complainant’s solicitor did write seeking various information by letter dated 5 February 2020, this letter was not addressed to any particular person in the respondent and was addressed to the respondent’s address at a location in Dublin 2. The respondent highlights that the alleged incidents occurred at the Tallaght clinic and it is alleged that the Clinic Manager, Ms. S gave the instruction to the nurse not to assist the complainant. The respondent asserts that Ms. S was entirely unaware of both the complainant’s complaint form and the solicitors correspondence on 11 and 18 February when these incidents are alleged to have occurred.

In addition, Ms. Smith denies that the instruction was given in the manner alleged by the complainant. The respondent maintains that it generally had two doctors working and one nurse at a clinic. One doctor would do LARCs in the morning and the other doctor shorter appointments (scripts such as contraceptive pill) and then swap in the afternoon. The respondent states that nurses will assist doctors by taking blood pressure, weight, administering pregnancy tests and taking urine if required, taking a medical history etc. The respondent submits that LARC appointments where an insertion is being done requires a nurse in a room for a number of reasons; to calm the patient in case of anaphylactic shock in the event of fainting/distress etc. The respondent contends that for this reason, these appointments are not scheduled when a doctor is working on their own. In addition, if a doctor is working on their own without the assistance of a nurse the time between consultations/appointments is increased by 5 minutes to allow the doctor extra time due to the absence of nurse support.

The respondent states that since August 2019 (up until lockdown in March 2020) the respondent had two nurses working most days. It states that on certain days, one of the nurses might be assigned to do medical administration work for part of the day (morning or afternoon) while the other nurse assisted the doctors (one of whom would be doing scripts and the other LARCs). The respondent insists that this administration work was of an essential medical nature e.g. contacting patients with lab results, STI outcomes, cervical smear test results etc. The respondent states that it had been work done by the Medical Director herself and more latterly with the assistance of a doctor in a different area. However, with the hiring of an additional nurse, one nurse, L, was trained up to do the medical administration.

The respondent asserts that there is only one nurse on Tuesdays and Fridays to assist two doctors in the Tallaght clinic. In addition, Tuesday morning was designated an “administration day” in the Tallaght Clinic, with nurse L assigned to work on administration matters in the morning only. On Tuesdays there were two doctors and one nurse in the morning and only one doctor and one nurse in the afternoon. The respondent states that 11 and 18 February 2020 were both Tuesdays and nurse L, who was the nurse trained up on the medical administration, was allocated administration duties on Tuesday mornings. This was taken into account in the appointment scheduling for those mornings and the complainant scheduled extra time between appointments. The instruction was for the nurse to work on those duties and assist the remaining doctor in the afternoon. The respondent maintains that this instruction was not particular or personal to the complainant, and the nurse was assigned to work with the complainant in the afternoon. In conclusion the respondent states that there is no basis to the complainant’s claim of victimisation.        

Claim under Terms of Employment (Information) Act 1994

I find based on the evidence heard and the testimony given at the hearing that the claims in the within claim are of a de minimus nature and without merit, particularly where there had been substantial compliance with obligations under the Act. In this regard, I am cognisant of the caselaw in HSE v Dr. Siobhan O’ Kelly TED1918 and Irish Water v Patrick Hall TED161. It is also noteworthy that the complainant had legal advice from a solicitor when negotiating her contract. In the circumstances, I find that this complaint is not well-founded.

Claims under Organisation of Working Time Act, 1997      

Section 12 – rest breaks

Based on the witness testimony and the documentation submitted, in particular, a document relating to the complainant’s appointment diary and a spreadsheet relating to work schedules including that of the complainant, I am satisfied that the complainant did get her rest breaks.

The appointment diary shows that tea/lunch breaks were built into the complainant’s daily work schedule. It was also stated in testimony at the hearing that if any member of staff in the clinic works time in addition to these hours, this additional time is recorded in the “payroll book” for review by the clinic manager. The spreadsheet submitted relating to employees work schedules demonstrates that lunch and tea breaks were scheduled for the complainant. It can be noted that the appointment times allocated to the complainant are consistent with that provided to all doctors for each procedure. The respondent witness further stated that there was no reason why the complainant should not have taken said breaks nor was any issue regarding breaks raised with the complainant’s manager at that juncture. Having carefully considered all the evidence relating to the within complaint, I find that there is no breach in respect of section 12 of the Organisation of Working Time Act, accordingly I find that this complaint is not well-founded.

Section 21 – Public Holidays

The complainant’s claim is that she was not paid the correct rate of pay. Accordingly, I find that there is no breach of the 1997 Act and the complaint relates to an Equal Pay/Discrimination claim. I am satisfied that this complaint is not well-founded.

Section 20 – Annual leave pay

I note that the complainant has not identified any relevant annual leave in the 6 month period prior to the submission of the claim form in which she alleges that she was not paid in advance. I note from the testimony of the witness of the respondent that its payroll operates, by paying employees on the last Friday of every month, in arrears. The respondent stated that the complainant has never made a request for advanced holiday payment from the respondent prior to the submission of this claim. Having heard all the evidence on this claim and with regard to the timeframe of the complaint, I find that there is no breach in respect of the legislation in this regard. Accordingly, I find that this complaint is not well-founded. 

Claim under the Employment Equality Acts

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.

Section 6(1) of the Employment Equality Acts provides:

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’’)

Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:

(a)    that one is a woman and the other is a man (in this Act, referred to as ‘‘the gender ground’’),

(h)    that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”)

Section 8(1)(b) provides that in relation to conditions of employment…an employer shall not discriminate against an employee.

Section 8(4) requires that an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.”

In respect of the complaint of equal pay under the employment equality legislation, the complainant has named two comparators Dr. A and Dr. B. In relation to Dr. A, the complainant is alleging discrimination on grounds of gender and race. Dr. A is male and is Irish and the complainant is Indian/Irish. Having heard all the evidence in relation to this complaint, I find that there is no disparity in pay vis a vis Dr. A and the complainant. I note that Dr. A following a reorganisation of his contract, moved to an hours worked basis and as such does not receive pay for tea breaks/lunch breaks. The respondent states that the complainant continues to be paid for breaks/lunch, as per her contractual entitlements, and on a full working day is scheduled to have one 15 minute tea break and a lunch break of 45 minutes. The respondent states that if the complainant wishes to vary her contract to move to an hours worked basis, this will be facilitated by the respondent however to date no such request has been made.

I find that the complainant has not established a prima facie case of discrimination on grounds of race or gender in relation to her pay vis a vis Dr. A and the reason for the differential in pay relates to Dr. A moving to a separate contractual arrangement i.e. on an hours worked basis which the complainant was given the option of availing of but declined. I am satisfied, based on the evidence, that the complainant has failed to establish a prima facie case of discrimination on grounds of gender or race in relation to equal pay vis a vis her named comparator Dr. A. I find that the differential in pay between the complainant and Dr. A is attributed to objective reasons which are unrelated to gender or race.

In respect of the other named comparator, Dr. B, who is female, the complainant alleges discrimination on grounds of race in respect of her pay disparity vis a vis Dr. B. The respondent stated at the hearing that the difference in pay was clearly related to the additional work undertaken by Dr. B. The respondent states that it is not in dispute that Dr. B is contracted to provide early medical abortion services (EMA) and the complainant is not. The respondent states that this additional work undertaken by Dr. B accounts for the difference in pay as Dr. B is remunerated at a slightly higher rate to reflect the additional knowledge, skills and complexity required in the provision of this service. I note from the respondent’s testimony that this is further corroborated by the fact that this was an additional pay collectively agreed for all doctors providing EMA services and was not specific to, or personal, to Dr. B’s performance of these services. I am satisfied based on the evidence heard that the pay differential in respect of Dr. B is due to the fact that Dr. B is contracted to provide EMA services. I find that the complainant has not established a prima facie case of discrimination on grounds of race in relation to equal pay vis a vis her named comparator Dr. B. I find that the differential in pay between the complainant and Dr. B is attributed to objective reasons which are unrelated to race.

Victimisation

Section 74(2) of the Employment Equality Acts defines victimisation as follows;

“For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of

the complainant was solely or mainly occasioned by the complainant having, in good faith—

a) sought redress under this Act or any enactment repealed by this Act for discrimination or

for a failure to comply with an equal remuneration term or an equality clause (or a similar

term or clause under any such repealed enactment),

b) opposed by lawful means an act which is unlawful under this Act or which was unlawful

under any such repealed enactment,

c) given evidence in any criminal or other proceedings under this Act or any such repealed

enactment, or

d) given notice of an intention to do anything within paragraphs (a) to (c).”

In Tom Barrett v Department of Defence (EDA 1017), the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a) – (g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.

Ms. S, who is the Line Manager of the complainant and Manager of the Clinic gave testimony stating that since August 2019 (up until lockdown in March 2020) the respondent had two nurses working most days. She stated that on certain days, one of the nurses would be assigned to do medical administration work for part of the day (morning or afternoon) while the other nurse assisted the doctors. Ms. S stated that this administration work was of an essential medical nature e.g. contacting patients with lab results, test results etc. It was submitted that this had been work done by the Medical Director but given the significant volume of work involved, an additional nurse named L was trained up to do the medical administration. Ms. S outlined that there is only one nurse on Tuesdays and Fridays to assist two doctors in the clinic. She further stated that Tuesday mornings were designated an “administration day” in the clinic, with nurse L assigned to work on administration matters in the morning only. It was submitted that on Tuesdays, there were two doctors and one nurse in the morning and only one doctor and one nurse in the afternoon. I note that 11 and 18 February were both Tuesdays and Ms. S stated that Nurse L who was the nurse trained up on the medical administration, was allocated administration duties on Tuesday mornings. It was stated that the instruction was for the nurse to work on those duties and assist the remaining doctor in the afternoon. Having regard to the evidence heard, I note that this instruction was not particular or personal to the complainant and indeed that the nurse was assigned to work with the complainant in the afternoon.  While it is alleged by the complainant that the acts of victimisation took place on 11 and 18 February, I note that Ms S stated in testimony that she only became aware that a claim was lodged by the complainant in late April 2020.

With regard to the claim of victimisation, on balance, I prefer the evidence of Ms. S as I found her testimony to be more credible and cogent. Accordingly, I am satisfied that the complainant was not victimised by the respondent contrary to Section 74(2) of the Employment Equality Acts.   

Claim under Terms of Employment (Information) Act 1994

I consider that this complaint is not well-founded.

Claims under Organisation of Working Time Act, 1997      

Section 21 – Public Holidays

I find that there is no breach in respect of this matter under the Organisation of Working Time Act. This complaint is not well-founded.

Section 20 – Annual leave pay

I find that the complainant did not establish a breach in respect of this matter under the Organisation of Working Time Act. This complaint is not well-founded. 

Claim under the Employment Equality Acts

I find that the complainant was not discriminated against in respect of her pay vis a vis her two named comparators on grounds of her race or gender. I am satisfied that there were objective reasons with regard to the pay differential which are unrelated to gender or race.

Victimisation

I find that the complainant was not victimised by the respondent contrary to Section 74(2) of the Employment Equality Acts.

Equal pay, Organisation of Working Time Act, Terms of Employment (Information) Act, Victimisation