Complainant

Respondent

Parties

Mary  Sweeney

The Galway Clinic

Representatives

Kevin Bell BL instructed by Colum Holland of  Matheson

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-00053614-001

08/11/2022

The Complainant has worked for the Respondent as a Senior Radiographer since the 2nd of October 2018.

In the Respondent hospital there are two categories of radiographers. One group performs CT scans and the other performs MRI scans. Until January 2023 there was a different rate of pay for each cohort. Those who perform MRI scans earned €2250 more than those who perform CT scans.

The Complainant had a magnetic implant inserted due to a medical condition sometime before she joined the Respondent. This appears to have prevented her from further working in MRI. The Complainant is fully trained and qualified in the performance of MRIs.

The Complainant brought an equal pay claim due to disability via the Employment Equality Act. The claim was submitted November 2022 and a hearing was held in June 2023.

As this is an equal pay claim the focus of this decision is on whether these two categories of workers are employed to do like work as outlined by Sections 29 and 7 of the Employment Equality Acts.

The Complainant provided detailed written submissions and gave evidence under affirmation. She applied for the role of Senior Radiographer in 2018. She did not apply for a particular panel of CT or MRI radiographers.

When she joined the Respondent, she notified them about her implant. She was able to obtain the notes of the interview meeting where this was discussed and furnished them to the WRC. An occupational health medical assessment was organised and following that assessment the Respondent decided that she should not carry out MRI work. She believes that this was due to the potential impact of the machine on her implanted device but was never explicitly told this was the case. The Complainant did not know there was a difference in the rate of pay and may have challenged that decision if she had known.

Responding to the Respondent’s submissions the Complainant disagreed that the CT Radiographers and MRI Radiographers performed substantially different work. Both have a similar workload and are paid overtime when they worked above their normal hours.

The Respondent provided detailed written submissions and Ms Evelyn Smith, the Respondent’s Allied Health Executive manager gave evidence under affirmation.

Ms Smith was closely involved with the Respondent setting up their MRI service. 

From the outset MRI work has been considered a more difficult than performing CTs. Radiographers performing MRIs can generally expect a full list of patients when they work and generally work longer shifts on both weekdays and weekends.

For reference Ms Smith looked at a recent weekend which the Complainant worked in order to demonstrate the difference. In this time the Complainant performed 9 CTs while the radiographer performing MRIs completed 18. Ms Smith accepted that the Complainant would have also completed X-rays and does not know how many.

In January 2023 there was renewed pressure to recruit more radiographers and provide them with suitable opportunity to accrue overtime. In the circumstances the Respondent decided to equalise the pay between the two groups.

Ms Smith didn’t remember the Complainant’s onboarding process, but she did remember that the Complainant had told her that she couldn’t perform MRIs due to her implant. She expressed no desire to perform MRIs.

The Respondent has made two assertions which the Complainant, in her evidence, has refuted.

The first is that her medical implant does not come within the definition of disability. I am of the view that a condition requiring a permanent medical implant would be encompassed by Section 2 subsection (a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, and/or subsection (c) the malfunction, malformation or disfigurement of a part of a person’s body.

The second is that the Respondent was not aware of the Complainant’s medical device and the associated condition. The Complainant has provided written evidence of her having notified the Respondent during her interview as well as convincing oral evidence of the onboarding process. She dealt with the Respondent’s occupational health service who were fully aware of her implant and its potential impact on her duties.  

I am satisfied that the Complainant was assigned to perform CTs rather than MRIs due to her disability by the Respondent.

The Complainant has not advanced a claim of reasonable accommodation suggesting that she should have been considered for the MRI list with appropriate accommodations. Rather she has advanced an equal pay claim and argued that the two groups were performing like work and that the pay differential was in fact, indirect pay discrimination on the disability ground.

Section 7.(1) outlines the conditions were two employees are considered to perform like work.

(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.

Referring back to the evidence, it is clear that neither A nor B are satisfied. CT and MRI radiographer’s work is not interchangeable, they explicitly perform different work. The differences between the roles are not of small importance nor are they irregular.

With regard to C, the Complainant provided quite compelling evidence that the two roles are of equal value having regard to skill, mental requirements, responsibility and working conditions. However, Ms Smith also provided detailed evidence and outlined that the intensity of the MRI work was generally much higher. A radiographer assigned to MRI work would generally expect a full list of patients when they start their shift whereas a CT radiographer could expect a degree of flexibility and referrals throughout their shift. Generally, a radiographer performing MRIs can expect a more arduous schedule. When the two rates of pay were first decided it was due to a backlog of demand in MRIs and a difficulty in recruitment of radiographers who were trained in MRI.

Different roles can be performed by the same profession and that does not, in of itself, make them like work. In the circumstances and noting that the burden of proof is on the Complainant, I am not satisfied that the two groups of radiographers perform like work as is defined by the acts.

As such the equal pay claim must fail.

I find that the complaint is not well founded.