Complainant

Respondent

Parties

Paula  Whyte

Health Service Executive

Representatives

  Self Represented

 General Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051282-002

24/06/2022

The Complainant is employed as a Grade 7 with the Respondent and she alleged she was being discriminated against on the equal pay discrimination ground and was entitled to be upgraded to Grade 8 on the basis of equal pay with other staff completing similar duties across the HSE locations in Ireland.

In 2018 it came to the Complainants attention that the role of FOI Decision Maker and Complaint Review Officer was predominantly assigned to Grade Vlll or higher across the HSE. At that time, the HSE had a number of Acting General Managers in Roscornmon and the Complainant attempted to address this matter but to no avail. The Complainant then referred the matter to HR. HR informed the Complainant that she had to address this with her line manager as there was no mechanism in HR to resolve this issue.

In October 2021, following some discussion, the Complainant formally wrote to Mr. Seamus Beirne General Manager, Primary Care concerning her role in HSE Primary Care outlining that she was aware that the responsibility of HSE Freedom of Information Decision Makers across Galway, Mayo & Roscommon and nationally across Ireland are predominantly in the role of Grade Vlll or higher and provided evidence to support this for the CH02 area. The General Manager informed the Complainant that he would discuss the matter with Ms. Mary Warde, Head of HSE Primary Care, Galway, Mayo and Roscommon, Community Healthcare West.

In February 2022, Seamus Beirne outlined that Ms Mary Warde, considered that the Complainants FOI Decision Maker colleagues in CH02 region of Galway, Mayo and Roscommon held responsibility for managing other services along with the responsibility for FOI Decision making for their department. He advised that she requested the Complainant provide further evidence of other FOI decision makers in other CHO areas across Ireland for a broader comparison.

The Complainant conducted an analysis of HSE Decision Makers and provided evidence of approximately 200 FOI Decision Makers across CHO regions nationally. Her findings were that over 80% are Grade Vlll or Higher. The Complainant also provided evidence of a role in Consumer Affairs, Galway, who has a similar role to hers as the nearest comparator who is an FOI Decision maker and Grade Vlll.

On 24 June 2023 Seamus Beirne advised the Complainant that he had presented the case to Ms Mary Warde, Head of Service and informed the Complainant that although he agreed with the merit of the case there is no mechanism to upgrade this role. He advised that the Complainant should refer the matter to the WRC for a decision.

The Complainant was originally appointed FOI Decision Maker for Roscommon Community Services in 2013 and Complaint Review Officer for Galway & Mayo in 2015. In 2016 while the HSE was restructuring into CHO regions Heads of Services were advised that under the new pillars of Primary Care, Social Care and Mental Health Services etc., they would be responsible for managing their own FOI/DP/Complaint processing.

CH02 Roscommon, all heads of departments refused to take on the responsibility and role of FOI Decision Maker/Complaint Managements. At that time,  Roscommon had a variety of acting General Managers in place. The Complainant was requested to continue with this responsibility for the interim until such time the structures were bedded down. The Complainant duly obliged HSE Management and continued to carry out the role and responsibilities that had been assigned to managers above her pay grade without dispute, trusting management that this matter would be resolved in due course.

In 2018, the Complainant became aware that heads of discipline of the other sectors outside of Primary Care at Grade Vlll level had begun to manage FOI/DP Decision Making and were assigned as Complaint Review Officers in each sector across Galway and Mayo except Roscommon. Despite raising the issue with management on several occasions, in Roscommon the heads of discipline have continuously refused to take on these responsibilities. Unfortunately, after seven years since the restructuring, this decision has still not been reviewed or resolved in Roscommon. However, management think it is reasonable and acceptable that the Complainant continue to carry out the role and responsibilities that for over seven years have been assigned to more senior staff not only across the CH02 region but nationally.

In 2018, after the Introduction of the Data Protection Act 2018 and the new DP Regulations — the Complainant was informed by Ms Mary Warde, who was General Manager at that time that she had to take on further responsibility for Data Protection decision making for Roscommon Primary Care, Mental Health and Social Care. The Complainant again obliged management and took on this further responsibility and duly attended Data Protection training in Dublin. It was at that point, that the Complainant became fully aware that it was predominantly Grade Vlll staff that attended training and were responsible for FOI/DP Decision Making.

In October 2020, Seamus Beirne became General Manager for Roscommon/Mayo. He requested that the Complainant further extend her role and responsibilities as FOI Decision Maker for Mayo Primary Care Services in the absence of any expertise or experience in Mayo. The Complainant again obliged and agreed that she would take on the role of governing both County Roscommon and County Mayo on the grounds of being offered support. Support has been very poor and despite continuously trying to address this with management, it has only been offered in a sporadic manner and a separate grievance concerning this has been submitted to management concerning this matter.

In 2021 the Complainant attended the National FOI Forum with regard to consultation for changes to the FOI Act and noted that all other decision makers at that Forum were Grade Vlll and above.

In 2022 the Complainant was advised that she was nominated to represent Galway, Mayo & Roscommon at the CH02 GDPR Compliance Committee and on behalf of Senior Management in CH02.The Complainant had the responsibility of conducting a comprehensive analysis across the region of the impact that implementing aspects of DP legislation would have on the current resources of all departments within Primary Care.

The Complainant has sole responsibility for Freedom of Information decision making, for all services under Primary Care for both Roscommon and Mayo. The Complainant provides a service to over 50 different departments across both Roscommon and Mayo Health Services.:

The Complainant also has sole responsibility for providing a FOI Decision Making service to all Roscommon Mental Health Services and Roscommon Older People Services.

The Complainant is also responsible for Complaint Investigations of all formal complaints for Roscommon Primary Care and is also the Complaint Officer for Roscommon Mental Health services. Outside of this the Complainant is also consulted to assist with complex complaint investigations across Galway/Mayo and Roscommon.

The Complainant is also responsible for reviewing complaints in the role of Review Officer for Galway and Mayo. This is reviewing appeals concerning Complaints already investigated before referral to the Ombudsman. All other Review Officers within CH02 region are Grade Vlll and above. In this role the Complainant is also directly accountable to the Ombudsman for her findings for both complaint investigations and review of complaints.

The Freedom of Information Act 2014 is complex. As a FOI decision maker, there has to be an element of expertise and experience in understanding the Act and the impact that release of records may have on services. A decision maker is held directly accountable for decisions to the Office of Information Commissioner (OIC). The Complainant is accountable for this service for both Roscommon and Mayo and is consulted to assist with complex FOI Requests cases across the CH02 region of Galway, Mayo as well.

The Complainant is also responsible for decision making under the Data Protection Act 2018 for all departments within Roscommon Primary Care, Social Care, and Mental Health as outlined above. As with FOI, there has to be an element of expertise and experience in understanding the Data Protection Act 2018. The Complainant is also consulted to assist with complex Data Protection cases across the CH02 region of Galway, Mayo as well.

The Complainant is also responsible for providing support, briefing, training, guidance and advice to heads of service/senior management across Primary Care and a variety of other staff across Galway, Mayo and Roscommon on FOI/Data Protection and Complaint investigations.

The Complainant has also been required to complete FOI Internal Reviews on behalf of General Manager/ Head of Primary Care. This is a designated role and responsibility afforded to Grade Vlll or higher and the Complainant provided evidence of same outlined in an email from Ms SL, Consumer Affairs which outlines that she is  not considered an Internal Reviewer.

The Complainant also has a role in Open Disclosure and is responsible for providing Open Disclosure training to all staff across CH02 region and SAOLTA Hospital Groups.

The Complainant also believes her responsibilities in the area of Complaint Review officer since 2016 are comparable to the role of other Grade Vlll Review Officers across CH02 area. All other reviewers are on the HSE website across Ireland.

The Complainant stated she is aware that the HSE argues that Grade Vlll and higher also have other responsibilities within their remit as FOI Decision Makers and Complaint Review Officers. The Complainant believed she had demonstrated that she too has other responsibilities. However, it is evident that the HSE at national level considered the responsibilities of the role of FOI Decision Makers and the role of Complaint Review Officers and assigned this to Grade Vlll staff. The Complainants position is that she should also be entitled to the same rate of remuneration for carrying out the same work and responsibilities for which she is employed to do that are assigned to other Grade Vlll's in the role of FOI Decision Making and Complaint Review Officer across CH02 region and Ireland.

Following the restructuring of the HSE in 2016, the Complainant is aware that her role is now quite unique except for the role of staff in Consumer Affairs, Galway. This is as a result of the refusal of local heads of Dept in Roscommon to take on the responsibilities that have also been assigned to Heads of Dept nationally. Also the lack of will by senior management to implement the same at local level.

As a result, it has proven difficult to provide evidence of an exact comparator to the Complainants  role. However, the nearest comparator the Complainant could align her role with is FOI Decision Maker based in Consumer Affairs Galway. Their role is described as following:

An advisory role on FOI/DP legislation impacting the HSE. To provide advice and guidance in line with current legislation. To manage/investigate Complaints under Part 9 of the Health Act 2003. To provide training and advice to delegated Complaint Officers in addition to reviewing decision letters and supporting staff. This role is a designated contact for liaising with Ombudsman, Information Commissioner and OIC.

As outlined above, it is evident that the Complainant maintained that she has always been cooperative and has duly obliged HSE Management by taking on responsibilities assigned to her when requested without dispute. The Complainant also stated she has no issue with the level of responsibility, accountability or challenges this role presents.

However, the Complainant believed that it is extremely unfair that the HSE management expect that she should continue to conduct the same work and responsibilities of a Complaint Review Officer and a FOI Decision Maker when these roles have been assigned regionally and nationally to Grade VIII staff. She also believes it is unfair that she is not afforded the same recognition that is afforded to these higher grades that are assigned these responsibilities as part of their roles.

The Complainant believes that the responsibilities assigned to her should reflect parity and recognition of equitable remuneration for carrying out the same work which she am employed to do in the role of FOI Decision Making and Complaint Review Officer, that are afforded to other FOI decision makers and Complaint Review Officers who are Grade VIII across the national HSE CHO regions who are awarded at their appropriate monetary grade status.

Finally, the Complainant stated she has over 26 years' experience within the HSE. Of which, 18 years of this experience has been in the area of Freedom of Information/Data Protection/Complaint Investigations and Complaint Reviews. Of which, 10 years have been in the role of FOI Decision Maker and 9 years as a Complaint Review Officer for Galway and Mayo.

The Complainant commenced employment as a Clerical Officer on October 10th 1997, based in Roscommon. On June 4th 2002 The Complainant commenced employment as a Grade 5 in Information Services. On October 1st 2013 The Complainant was upgraded to a Grade Vll in information services through regularisation of acting up as per HSE Circular 017/2013.

The Complainant has responsibility for Freedom of Information for Mayo & Roscommon Primary Care and Roscommon Mental Health Services. The role is also Complaints officer for Roscommon, this includes nonclinical complaints only. Clinical Complaints are processed separately, In 2022 the Complainant had responsibility for processing a total of 38 Freedom on Information Requests.

The Complainant identified a Comparator as Ms. SL, Consumer Affairs Area Officer. The role of Consumer Affairs Area Officer is not directly comparable to the Complainant's Role. The Consumer Affairs Area Officer is an advisory role advising on consumer affairs legislation, Freedom of Information Legislation, GDPR & Data Protection Legislation impacting the HSE. This role provides advice and guidance in line with current legislation. This role also deals with complaints under Part 9 of the Health Act 2004. The role has responsibility for providing training and advice to all delegated complaints officers in addition to reviewing decision letters and supporting staff. The role has responsibility for CHOI, CH02 & CH03 in addition to the Saolta Hospital Group which comprises of 6 hospitals across 7 sites. The Consumer Affairs Area Officer is the designated point of contact to liaise with the Ombudsman and the office of the information commissioner. The role has responsibility to liaise with the Ombudsman and the office of the information commission and the services. The role of area officer also includes Line Management responsibility for a department of staff. The Consumer Affairs Area Officer reports directly to the Deputy Data Protection Officer.

It was Management's position that the Complainant is currently paid at the correct grade for the post she holds in line with the Consolidated Pay Scales. The Complainants role is not comparable to that of Ms SL, Consumer Affairs Officer.

Management advised that have no basis to seek an upgrade of this post.

The Complainants complaint relates to a proposed upgrade from Grade 7 to 8 on the basis the Complainant is doing like work with a specified Comparator and with many others across the organisation.

The applicable law

Employment Equality Acts 1998-2015

“Discrimination for the purposes of this Act.

6.— (1) 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 ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds

Like work.

7.— (1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

The comparators.

28.— (1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

Entitlement to equal remuneration.

29.— (1) It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(5) ……), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.”

Submissions at the Hearing

The Parties primarily relied on their written submissions. The Complainant stated at the Hearing that she felt about 80% of her role was at Grade 8.She stated she is an internal FOI Reviewer and does the work but does not put her name to the final documents.  Mr. Beirne stated that Ms. SL was not a comparable role in that she was in legal advisory role regarding data protection. Mr. Beirne confirmed that all Grade 8s are Heads of Departments and are Line Managers in addition to their FOI role. The Complainant advised she was promoted to Grade 7 in 2013 and dealt with 38 FOI requests in 2022.The Complainant stated there was no mechanism for job evaluation above Grade 7. The Complainant stated that Mr. Beirne became Manager in 2020 and she has taken on willingly the FOI role normally done by a Grade 8 Manager. The Respondent denied there was like work with the named Comparator and that all other staff at Grade 8 held higher level  department responsibilities  roles in addition to the role specified by the Complainant.

Burden of proof

In every case under the Acts an Adjudicator must first consider the allocation of the burden of proof as between the parties. Section 85A of the Acts provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. In A Worker v A Hotel[2010] 21 E.L.R. 72 the Labour Court held as follows in relation to the application of this provision: “The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination in Mitchell v Southern Health Board[2001] E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.

The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court inKieran McCarthy v Cork City Council Labour Court Determination EDA082 (December 16, 2008)”

In Case 109/88Handels- og Kontorfunktion Rernes Forbund I Danmark v Dansk Arbejdsgiverforening acting on behalf of Danfos[1991] 1 CMLR 8, the CJEU (formally the ECJ) was called upon to consider a case in which pay supplements were determined by a system wholly lacking in transparency. The Court held at paragraph 13 as follows: -“It should next be pointed out that in a situation where a system of individual pay supplements which is completely lacking in transparency is at issue, female employees can establish differences only so far as average pay is concerned. They would be deprived of any effective means of enforcing the principle of equal pay before the national courts if the effect of adducing such evidence was not to impose upon the employer the burden of proving that his practice in the matter of wages is not in fact discriminatory”.

In Nevins, Murphy, Flood the Court also considered the quality of evidence that should be expected from a Respondent who bears the burden of proof. In adopting the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite[2003] I.R.L.R. 322, the Court held that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden.

Discussion

It is clear from the evidence that at the time material to this claim the Respondent’s pay determination system was devoid of any structure. There was no attempt to determine pay by reference to any form of objective assessment of the comparable roles. It appears that the dominant if not the only factor taken into account was what the vast majority of other comparable employees were doing higher level work  in more substantial roles. Such a system is inherently open to being tainted by discrimination. The other factor is DPER would not countenance a cost increasing claim. Be this as it may, I have to make a decision on the burden of proof the information provided to me by the Parties

Applying the standards in Danfos, the evidence tendered on behalf of the Respondent did not go into any great detail/analysis of the Comparators and in normal circumstances this could not be enough to rebut the inference of discrimination in terms of pay by operation of s.85A of the Act. However, the Complainant made out her case on two comparator grounds. Firstly that Ms. SL’s role was comparable and on the basis of approximately 200 other roles nationally. The Respondent rebutted the argument put forward that the Complainants role was similar to Ms. S’s role on the basis her role was a Legal Data Protection Officer and thus dissimilar to the Complainants role. From the limited information presented, I concur with this view but do not rule out the Complainant including this role in any future exercise to evaluate her claim.

The second ground on which the Worker based her claim was a list of jobs she submitted from across the country within the organisation doing a similar role to the Worker. Unfortunately the Worker did not tabulate an analysis of the Grades of other staff but from my review a majority, but not all, were a Grade higher than the Worker and some were ether the same as the Worker and some were in Grades 3, 4, 5 and 6, all  below the Workers Grades. The vast majority of posts submitted did not have the specific title of FOI Decision maker but did this role as part of their substantial role.

The Respondent could not reasonably be expected to examine in detail 200 roles to justify their position. The primary facts on which the Complainant’s case are that she is doing the same job as others and that it is the role of a Grade 8 nationally to do this job and that peculiar to her region a person in Grade 8 has not taken on the role and that she is paid less to the Comparators.

The Respondent argued that the fact the Comparators were all doing more higher level functions as part of their normal job and the FOI functions were just a part of their job as the fundamental reason for not increasing the Complainants grade to Grade 8. It was clear that most roles doing the FOI role were done by Grade 8s nationally. The exact detailed roles of the Comparators were not examined at length during the Hearings by either party and even if they were, the fundamental difference would remain the same that the role of FOI is undertaken elsewhere in the Organisation by persons with lower and higher levels of responsibility than the Complainant. The facts in Danfos are different to those of the instant case but the principal that can be extracted from the decision is that opaqueness in a pay determination system, in combination with other factors, can operate to shift the burden of proving the absence of discrimination to the employer. However, as the list of roles submitted by the Complainant contained staff she alleged were doing similar work to the Complainant, contained staff in Grades 3,4,5,6,7 and 8 I deem this sufficient to support the Respondents position that the FOI role is carried out by staff across the organisation who hold different and varying levels of responsibility (and Grade) and it  is on this ground that I decide that the Complainant has not established a prima facia case and the burden of proof did not shift to the Respondent.

I find that the Complainant has not established a prima facia case and has not been discriminated against.

Equal Pay