Complainant

Respondent

Parties

Dr Olga  Mikulich

Health Service Executive

Health Service Executive

The Minister for Health

The Minister of Finance

The Minister for Public Expenditure & Reform

Representatives

MR.  GERARD DURCAN SC

MS.  CATHY SMITH SC

MR. DESMOND RYAN BL

INSTRUCTED BY:  DANIEL SPRING & COMPANY SOLICITORS

FOR THE MINISTERS:  MR. EOIN McCULLOUGH SC

 MS. CLÍONA KIMBER SC

 MS. ISABELLE AYLMER BL

 MR. NIALL O'DRISCOLL BL 

Instructed by:  CHIEF STATE SOLICITOR 'S OFFICE

FOR THE HSE: MR. MICHAEL HOWARD SC

MS. MARY FAY BL

Instructed by: PHILIP LEE LLP SOLICITORS

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-00025926, CA-00025927, CA-00025928, CA-00025929, CA-00025930

29/01/2019

The complainant referred complaints of direct and indirect discrimination on grounds of age under the Employment Equality Acts 1998-2015 to the Workplace Relations Commission on the 29th of January 2019.

The within claims are taken against a number of respondents namely the Minister for Health, the Minister for Finance, the Minister for Public Expenditure and Reform, and the HSE.

The complainant asserts that they perform “like work” with their named comparator in terms of section 7(1) of the Employment Equality Acts, 1998-2015 and consequently is entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 29 of the Acts.

A claim of indirect discrimination on grounds of age in respect of equal pay has also been submitted asserting that that the 30% salary cut which came into operation for new entrant consultants after 1 October 2012 affected a disproportionate number of consultants of a younger age group.

The complaint form itself states as follows:

‘I am seeking the appropriate protections contained within the Employment Equality Acts 1998 ("the Acts") as amended arising from measures which took effect from the 1st of October 2O12 when a 30% reduction was introduced pertaining to the salary payable to new entrant consultants as subsequently modified with effect from 14th September 2014’.

 These measures implemented in 2012 and subsequently amount to indirect discrimination on the grounds of age under the Acts in circumstances where these measures have had a disproportionately significant impact upon me compared to my older comparators not so adversely affected. Accordingly, I am seeking redress in the form of parity of treatment to include equal remuneration and compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration).

The complainants submit that they have been discriminated against on grounds of age in respect of salary entitlements under their consultant contract.   The complainants submit that they are seeking the appropriate protections contained within the Employment Equality Acts 1998 as amended ("the Acts") arising from measures which took effect from the 1st of October 2012 when a 30% reduction was introduced pertaining to the salary payable to new entrant consultants, as subsequently modified with effect from 14th of September 2014.

The Complainants allege direct and indirect discrimination on the basis of age and seek relief before the WRC under Section 77 of the Employment Equality Act 1998, as amended (“the EEA”). 

As regards the claim of indirect discrimination, the complainants submit that the measures introduced in 2012, and subsequently, amount to indirect discrimination on the grounds of age, under the Acts, in circumstances where it is submitted that these measures have had a disproportionately significant impact upon younger consultants, compared to their older comparators not so adversely affected.

It has been submitted that the 11 complainants who represent the wider number of 181 claimants have been paid less than their chosen comparators on the grounds of age.  The Complainants are younger than their Comparators. 

The complainant asserts that they perform “like work” with their named comparator in terms of section 7(1) of the Employment Equality Acts, 1998-2008 and consequently are entitled to the same rate of remuneration as paid by the respondent to that comparator in accordance with section 29 of the Acts.

The Complainant submits that they are entitled to equal remuneration pursuant to Section 29 of the EEA. This section provides, that it shall be a term of the contract under which the Complainant is employed that, subject to this Act, the Complainant shall at any time be entitled to the same rate of remuneration for the work which the Complainant is employed to do as their chosen comparator who, at that or any other relevant time, is employed to do, like work by the same or an associated employer.

It is submitted that, contrary to their entitlement to equal remuneration in Section 29, the Complainant’s contract of employment is such that they are entitled to a lesser rate of remuneration for the work they are employed to do than that which is paid to their chosen comparator, who is employed to do like work.

It is submitted that Insofar as the Respondents contend that the reason for the difference in remuneration (and other terms and conditions of employment) relates to grounds other than their age, such grounds constitute indirect discrimination contrary to Section 29(4) of the EEA.

The 11 complainants also argue that contrary to the position articulated by the Respondents, the decision of the CJEU in Case C-154/18, Horgan, and Keegan v. Minister for Education & Skills (“Horgan and Keegan”) is not determinative of the issues arising in this case. The decision is distinguishable having regard to the significantly different factual context of that case. Further the complainants submit that there was no consideration of the provisions of the EEA by the Labour Court in regard to that claim.

The Complainants are “lead Complainants” who serve as representative cases, agreed by the parties, to represent a larger number of Complainants who are affected by the alleged discrimination on similar facts. In accordance with case management directions, the within legal submissions are made in respect of all the named Complainants.

 Background to claim

 In 2008, a new contract of employment, containing new terms and conditions (which like its predecessors is known as the Common Contract), was offered to all existing consultant contract holders, and also offered to all newly appointed consultants. This contract was implemented by an enabling circular dated 25 July 2008. This contract inter alia introduced new pay scales and structure. A significant majority of consultants are employed on foot of the 2008 Common Contract.   In September 2012, the Department of Health directed the introduction of a reduced pay scale to be applied to new entrants to consultant roles. Department of Health Circular No. 3/2012, dated 26th of September 2012 to the HSE National Director of HR conveyed the Minister’s approval for the application of the reduced new entrant scale from 1 October 2012 on the following basis:

 “Those who have been offered contracts at the 2011 rates are not affected. Those who have been successful at interview and are awaiting PAS and/or HSE clearance are not affected. Where selection process is in train or not yet commenced Any posts that are to be filled from interviews which have not yet taken place will be subject to the new scales.”

On 28th September 2012, HSE HR Circular 17/2012 was published. In this circular, the HSE, advises that “the Minister for Health has approved revised salary rates for new entrant Consultant Medical Staff effective from 1st October 2012.” This circular indicates a 30% cut to salaries to all newly appointed consultants at all points and includes pay scales indicating this reduction.   By letter dated 4th of December 2012 from the Department of Health to the HSE, further change was implemented in respect of the application of the 1st of October 2012 criteria to new entrants as follows: - “I refer to Circular 03/2012 concerning the salary scale for consultant appointments made from October 2012 and issues raised regarding application of the new scale in particular circumstances. Where interviewing took place prior to 1 October 2012 in respect of an identified position, the previous (1 January 2011 scale) may be applied.  However, if an additional post, not envisaged when interviews took place, arises on or after 1 October, the new revised scale must be applied.  The following arrangements should be applied in respect of appointments to be made following competitions for interviews where interviews were held on or after 1 October 2012.

 • Where a serving permanent clinical consultant is to be appointed to a clinical consultant post, the new revised scale must be applied.

• Where a serving permanent clinical consultant is to be appointed to an academic consultant post, he/she may be employed on the salary scale to which he or she was subject before such appointment.

• Where a serving permanent academic consultant is to be appointed to another academic consultant post, he or she may be employed on the salary scale to which he/she was subject before such appointment.”

It is submitted that these changes had the effect that to obtain a more favourable salary scale, an applicant had to be interviewed prior to 1 October 2012. However, in the case of an application for an academic consultant post, a person who was interviewed after 1 October 2012 could still get the more favourable scale if he/she was a serving permanent clinical consultant or a serving permanent academic consultant. 

By further letter dated 14th of February 2014, another important change to the arrangements in regard to the appointment of consultants was made. The Department of Health noted the position set out in their letter dated 4 December 2012 that where a serving permanent clinical consultant was to be appointed to a different clinical consultant post, the 30% reduced October 2012 salary scales would apply. This instruction was amended as follows: - “where a serving permanent clinical consultant is to be appointed to a clinical consultant post, the consultant concerned may be employed on the salary scale to which he/she was subject before that appointment.”

The letter went on to clarify: “This instruction encompasses appointments made pursuant to the 4th of December guidance. A “serving permanent clinical consultant” is a consultant who was interviewed for a permanent post prior to the I October 2012”.

It is submitted that the original and the amended guidance applied to both existing and newly created posts. The complainants submit that this further change had the effect that an applicant who interviewed after 1 October 2012 for a clinical consultant post could get the benefit of the more favourable scale if he/she was a serving permanent clinical consultant at that time. However, if such an applicant could not satisfy this condition, he/she would not be entitled to the benefit of the more favourable scale.  The complainants assert that the cumulative effect of the changes outlined above show that they placed the Complainants at a particular disadvantage. It is submitted that the use of the criteria of date of interview together with a requirement that a person was a serving permanent clinical consultant placed younger applicants at a particular and significant disadvantage. It is submitted that younger applicants were much less likely to be able to satisfy the requirement of holding an existing consultant post and that this follows from the very nature of the requirement, but if necessary statistical evidence can be adduced to support this.

Further changes to the Consultant Contract 2008 were implemented by the Respondents, without the consent of the Claimants or their representative, in September 2015. These changes, inter alia, again altered the pay scales of consultants appointed after 1st October 2012, increasing the number of points on each scale, and increasing the highest salary available within them.

It is submitted that these changes did not apply to consultants appointed prior to 2012, who were still subject to separate pay scales. This change was implemented by HSE HR Circular 13/2015. The effect of these changes was to bring in an incremental scale whereby, dependent on being able to satisfy certain conditions, an applicant might be appointed at a more advanced point on that incremental scale. However, the introduction of these arrangements did not place applicants who were serving clinical consultants and applicants who were not serving permanent clinical consultants in the same position. Rather the latter group continued to be left at a disadvantage.  It is submitted that the Respondents have refused to afford the Complainant equal treatment to that applicable to other consultants who are performing the same work and are continuing to discriminate and/or direct discrimination as against the Complainant.  The individual particulars pertaining to this Complainant are set out below:

Complainant and comparator

The complainant in this case, Dr Olga Mikulich was appointed to a permanent consultant post on 2nd October 2017. Dr Mikulich’s specialty is Respiratory Medicine as well as General Medicine.  She is aged 55.  As per her claim form, her comparator is Dr Francis J. Kelly, a Consultant in Nephrology and General Internal Medicine at University Hospital Waterford. He is aged 58.  The comparator is 2.27 years older than the complainant

Evidence was adduced in respect of Dr Mikulich’s training, qualifications, and experience.   Evidence was also adduced in respect of the comparators experience and career to date.

Findings of the CJEU in Horgan and Keegan v. Minister for Education & Skills re Teachers pay cut January 2011

 Mr Horgan and Ms Keegan were teachers who claimed that the reduction of salaries for newly recruited teachers constituted indirect discrimination on the grounds of age.  In their initial claim to the WRC and in the appeal to the Labour Court, the employees claimed that they were discriminated against by the Department of Education and Skills, the Department of Finance, the Department of Public Expenditure & Reform, the Government of Ireland, Ireland and the Attorney General on the grounds of age contrary to Section 6(2)(f) of the Employment Equality Acts in relation to conditions of employment and that they perform “like work” in terms of Section 7 of the EEA with a named comparator and are entitled to equal remuneration in accordance with Section 29 of the EEA. The Preliminary Reference by the Labour Court: 

The Labour Court stayed proceedings to refer four questions to the Court of Justice for a preliminary ruling in relation to the interpretation of Article 2(2)(b) of the Framework Directive, pursuant to the provisions of Article 267 of the TFEU.   Article 267 of the TFEU permits the European Court of Justice to give preliminary rulings concerning the interpretation of Treaties and “the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union”. A court or tribunal of a Member State may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

The role of the Court of Justice is to give the national court guidance on the interpretation of European law. It does not interpret national law or determine the domestic case. The Court of Justice remits the matter back to the national court, which is required to use that guidance in its own decision.

 The question framed by the Labour Court was in the following terms:

(1) Does it constitute indirect discrimination on grounds of age, within the meaning of Article 2(b) of Directive 2000/78/EC, for a Member State, in its capacity as an employer, to introduce lower salary scales for new entrants to the profession of national teacher while leaving unaltered the pay of those teachers already in employment?, where: a) the revised salary scales and the existing salary scales apply to all teachers in the respective categories regardless of their age; b) at the point at which they were recruited and placed on the respective scales there was no difference in the age profile of those in the higher paid group and those in the lower paid group; c) the introduction of the revised scales has resulted in a substantial difference in pay as between two groups of teachers who are engaged in work of equal value; d) the average age of those placed on the reduced salary scales is lower than that of the average age of those on the original salary scales; e) at the point at which the lower salary scales were introduced, the State’s statistics showed that 70% of teachers appointed were 25 years of age or under and it was acknowledged that this was typical of the age profile of entrants to national teaching in any given year; and f) national teachers who entered the profession in 2011 and later suffer a clear financial disadvantage in comparison to their teaching colleagues appointed prior to 2011.

(2) If the answer to question 1 is in the affirmative, can the introduction of the lower salary scales be objectively justified by a requirement to achieve a medium- to long-term structural reduction in the cost of the public service, having regard to budgetary constraints facing the State and/or the importance of maintaining good industrial relations with existing civil and public servants?

(3) Would the answer to question 2 be different if the State could have achieved equivalent savings by reducing the pay of all teachers by a significantly lesser amount than the reduction applied only to newly recruited teachers?

(4) Would the answer to questions 2 or 3 be different if the decision not to reduce the salary scales applicable to teachers already in employment was taken in compliance with a collective agreement between the Government as an employer and the trade unions representing public service workers, whereby the Government committed not to further reduce the pay of existing public servants who had already been subject to pay cuts and the industrial relations consequences that would flow from a failure to comply with that agreement, having regard to the fact that the new pay scale introduced in 2011 did not form part of such a collective agreement?”

The Decision of the CJEU

 The CJEU found (with emphasis added): “Article 2(2)(b) of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted to the effect that a measure such as that at issue in the main proceedings which, as of a specific date, provides for the application on the recruitment of new teachers of a salary scale and classification on that scale which are less advantageous than that applied, under the rules previous to that measure, to teachers recruited before that date does not constitute indirect discrimination on the grounds of age within the meaning of that provision.”

 In making this determination, the CJEU reasoned at paragraphs [24 - 27]: “[24] That difference in treatment therefore results from the date of recruitment of the respective group of teachers, since that date determines whether the former or the new rules on the salary scale and classification on that scale are applicable. [25] Thus the only relevant criterion for the purposes of applying the new rules on the salary scale and classification on that scale is whether the person concerned is a ‘new entrant to the public service as of 1 January 2011’, regardless of the age of the public servant at the date at which he or she was recruited. Accordingly, that criterion, which renders the application of the new rule’s dependant exclusively on the date of recruitment as an objective and neutral factor, is manifestly unconnected to any taking into account of the age of the persons recruited (see, to that effect, judgment of 22 December 2008, Centeno Mediavilla, and Others v Commission, C-443/07 P, EU:C:2008:767, paragraphs 81 and 83). [26] In addition, the referring court stated that although, at the time of their recruitment, Mr Horgan, Ms Keegan and the majority of the other teachers recruited after 1 January 2011 were younger than the teachers recruited before that date, inasmuch as at that date approximately 70% of them were 25 years of age or under, it is also common ground that irrespective of the year of recruitment, both the teachers recruited after 1 January 2011 and those recruited before that date were on average 25 years of age or under. [27] It follows from the foregoing that the new remuneration conditions introduced by Ireland are not based on a criterion which is inextricably or indirectly linked to the age of the teachers, so that it cannot be considered that the new rules establish a difference of treatment on grounds of age (see, to that effect, judgment of 7 June 2012, Tyrolean Airways Tiroler Luftfahrt Gesellschaft,C-132/11, EU:C:2012:329, paragraphs 29 and 30).”

 It is clear that the CJEU found that the relevant, neutral criterion in Horgan and Keegan was whether a person was a new entrant to the public service on the date they were recruited. The Court determined that that criterion was not “inextricably or indirectly linked to the age of the teachers” (para. 27).

This appears to have been significantly based on the fact that approximately 70% of the teachers were 25 years of age or under and that irrespective of the year of recruitment, both the teachers recruited before and after the new remuneration conditions were introduced were on average 25 years of age or under. In paragraph 25, the CJEU states that the imposition of the new salary scales to teachers was for all teachers who were “new entrants to the public service as of 1 January 2011.”

The complainants submit that three points should be noted in this regard,

First, the educational and career path for consultants is longer and more complex than that for teachers.

Second, a significant majority of applicants for consultant posts would have had a history of working for different employers in the Health Service in the State even if they were not serving permanent clinical consultants.

Third, the 30% reduction in pay was uniquely applied to consultants. Conversely the 10% reduction which was at issue in Horgan and Keegan was applied, not only to teachers, but was applied across the public sector.

It is submitted that the decision in Horgan and Keegan turns on the fact that no link to age was established in relation to the only criterion that was applied, which was date of appointment. However, it is submitted that the factual background is materially and crucially different in this case.

It is submitted that an additional criterion was applied in the present case in relation to an applicant’s status as a serving permanent clinical consultant.  The complainants assert that this additional criterion, both by its nature, and in fact, was and is more easily satisfied by older applicants rather than younger applicants. Looked at the other way around, more younger applicants than older applicants would be unable to satisfy that requirement. As such it has an indirect link to age and reliance upon the criterion to determine the right to the higher or lower wage constituted indirect discrimination.

Bolger, Bruton, Kimber, Employment Equality Law (2nd edition, Round Hall, 2022), note that the decision in Horgan and Keegan has been the subject of criticism. At para. 8-27, the authors state: - “This case has been criticised. Commentators have noted that while the approach taken by the CJEU may hold true for a direct discrimination case, it is surprising in an indirect discrimination case to require proof of causation or a direct link. B. ter Haar has argued that it is precisely when there is a neutral criterion which has a disparate impact that objective justification is most required. Others have argued that the claim in Horgan and Keegan should not have been blocked at the gateway.”

The Remittal back to the Labour Court:

 It appears that when the case was remitted, the Labour Court considered the position in relation to national law very briefly: - “Decision and Determination Department of Education & Skills v. Horgan and Keegan EDA2121.   By its answers to the questions referred by this Court to it, the Court of Justice has ruled that the measures challenged by the Complainants in the within appeal do not constitute indirect discrimination on the grounds of age within the meaning of Article 2(2)(b) of Directive 2000/78/EC of 27 November 2000. The Employment Equality Act 1998 (‘the Act’) was enacted to give effect in national law, inter alia, to Directive 2000/78/EC. The Act must be interpreted and applied, so as to achieve the purpose pursued by the Directive. Accordingly, and having regard to the judgment of the Court of Justice in Case C-154/18, the Court determines that the within appeal fails. The decision of the Equality Officer is upheld.”

 It is submitted that that there was no substantial argument in relation to the meaning and/or effect of the decision on the preliminary reference.  It is submitted that it does not appear that the Labour Court engaged in any consideration of the language of Section 29(1) of the EEA. In particular, the Labour Court did not consider Section 29(4). The case therefore does not consider how the provisions of the EEA applied in the particular circumstances, including the answers of the CJEU in regard to the issue of European Law. In this case the Complainants place considerable reliance on the Irish statutory provisions as is set out hereunder.

For the reasons set out above, it is submitted that Horgan and Keegan is not determinative of the within cases.

 INTERPRETATION AND APPLICATION OF NATIONAL LAW

It is submitted that this claim must be determined by the application of the relevant provisions of Irish law, and in particular, the Employment Equality acts (EEA). Those provisions must be read having regard to the relevant rules of statutory interpretation, the most important of which is that the meaning of a statutory provision is to be found in the plain and ordinary words used therein. Therefore, it is necessary to look at what the EEA says and apply its provisions in the context of the factual circumstances of the case.

Entitlement to equal remuneration pursuant to Section 29.

It is asserted that Section 29 of the EEA is a somewhat unusual provision when one has regard to the structure of employment and discrimination protections under EU law. Although the EEA protects a number of discriminatory grounds (including age and gender) in the context of employment equality in a single piece of legislation, gender and age discrimination are dealt with separately in EU legislation.

 The Framework Directive (Council Directive 2000/78/EC3) makes provision for the protection from discrimination on the grounds of age. Gender equality is separately protected under Directive 2006/54/EC4 (“the Recast Directive”).  Section 29 of the EEA is framed by reference to Section 19 which in part implements the Recast Directive. The Section is very similar in nature to Section 19, which is a specific provision relating to equality of remuneration between men and women. Section 29 replicates that language in respect of the other discriminatory grounds, including age.

Section 29 includes significant temporal language (which in fact, is not contained in Article 4 of the Recast Directive).   As a matter of principle, employees covered by the discriminatory grounds are entitled to equal remuneration where they are employed to do like work, irrespective of the time or date of that work. 

The Complainants submit that they are engaged in ‘like work’ to their older colleagues who they have identified as comparators. They will provide evidence to establish this as may be necessary. The Complainants are younger than the Comparators and they perform ‘like work’ but the Complainants are paid less for that work than the Comparators.

This is due to the less favourable pay scale which applies to the Complainants, compared with a more favourable pay scale applying to the Comparators.  It follows, pursuant to Section 29(1) of the EEA, that they are entitled to the same rate of remuneration as such colleagues, unless their employers can establish pursuant to Section 29(5), there are grounds, other than the discriminatory grounds, for paying them a lower rate of remuneration.

The Complainants reserve the right to respond to any such reliance on Section 29(5) by the Respondents. However, as a matter of preliminary commentary, insofar as the Respondents contend that the grounds on which they pay the Comparators greater remuneration than the Complainants for like work, is based solely on the date of interview, the complainants submit that this is incorrect as a matter of fact.

Further, any such grounds relied upon by the employer pursuant to Section 29(5) cannot constitute indirect discrimination within the provisions of Section 29(4) which in turn applies the provisions of Section 19(4) to cases not involving gender. This is clear from the use of the words “subject to subsection (4)” at the beginning of subsection (5).

 Indirect Discrimination pursuant to Section 19(4) and Section 29(4):

 Section 19(4) sets out a comprehensive and self-contained definition and explanation as to the circumstances in which indirect discrimination occurs for the purposes of a gender related equal remuneration claim. It is important to note that the subsection does not contain any requirement that the gender of the person be linked to, much less the reason for, the imposition of the neutral provision. Rather it is enough to establish “indirect discrimination”, that such imposition places a particular gender at a particular disadvantage.

 Likewise, Section 29(4) sets out a comprehensive and self-contained definition and explanation as to the circumstances in which indirect discrimination occurs for the purposes of an equal remuneration claim related to a characteristic other than gender. Again, it is important to note that the subsection does not contain any requirement that the characteristic of the person be linked to, much less the reason for, the imposition of the neutral provision. Rather it is enough to establish “indirect discrimination”, that such imposition places a person having that particular characteristic at a particular disadvantage in comparison to a person who does not have that characteristic.

 It is instructive to compare the structure and wording of Section 19(4) and Section 29(4) with that of Section 6 of the EEA. Pursuant to Section 6(1)(a) discrimination occurs where a person is treated less favourably than another person “on any of the grounds specified in subsection (2)”. One of such grounds at Section 6(2)(f) is the age ground. However, the general provisions of Section 6(2)(f) do not in any way alter or affect the specific provisions of Section 19(4) and Section 29(4).

Section 6(2)(f) makes clear that the definition of discrimination contained therein is for the purposes of the Act but “without prejudice to its provisions relating to discrimination occurring in particular circumstances.”

The approach to indirect discrimination set out in Section 19(4) and Section 29(4) is hardly surprising as it reflects that adopted in previous legislative provisions, as authoritatively analysed, and explained in case law in the Supreme Courts of Ireland and the United Kingdom.

The complainants assert that the Supreme Court in its judgment in Nathan v Bailey Gibson, confirmed in respect of the Employment Equality Act, 1977, that there was no requirement to establish a causal connection in respect of indirect discrimination in the context of sex discrimination. In the judgment of Hamilton CJ, he found that: “In such a case, the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors that have relation to the plaintiff’s sex.”

More recently, the UK Supreme Court in Essop v Home Office made a similar determination. At paragraphs 24 and 25 of her judgment Baroness Hale found: - “24. The first salient feature is that, in none of the various definitions of indirect discrimination, is there any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others.  Thus, there was no requirement in the 1975 Act that the claimant had to show why the proportion of women who could comply with the requirement was smaller than the proportion of men. It was enough that it was. There is no requirement in the Equality Act 2010 that the claimant show why the PCP puts one group sharing a particular protected characteristic at a particular disadvantage when compared with others. It is enough that it does.

Sometimes, perhaps usually, the reason will be obvious: women are on average shorter than men, so a tall minimum height requirement will disadvantage women whereas a short maximum will disadvantage men. But sometimes it will not be obvious: there is no generally accepted explanation for why women have on average achieved lower grades as chess players than men, but a requirement to hold a high chess grade will put them at a disadvantage.  

A second salient feature is the contrast between the definitions of direct and indirect discrimination. Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic.   Indirect discrimination does not.  Instead, it requires a causal link between the provision criteria or practice (PCP) and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment.   Indirect discrimination assumes equality of treatment - the PCP is applied indiscriminately to all - but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified.

The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification.  It is dealing with hidden barriers which are not easy to anticipate or to spot.”

 The Complainants submit that the approach set out in these cases to indirect discrimination, should and must be adopted when determining these claims. They further submit that there is nothing in the Keegan and Horgan case which is inconsistent with such an approach.  

The complainants assert that it is important to remember that the Oireachtas, in accordance with Article 288 of the Treaty on the Functioning of the European Union (TFEU) and Article 8 of the Framework Directive was entitled to introduce in Section 29, measures that are more favourable to the principle of equal treatment than those laid down in the Directive. In this regard, it was entitled to put in place such domestic legislation as it thought fit to ensure that persons having different characteristics received the same rate of remuneration and that this result was not prevented or undermined by indirect discrimination.

The complainants submit that the correct approach is to interpret and apply the provisions of the EEA in accordance with the plain and ordinary meaning of the words used therein unless such an approach would be inconsistent with an obligation arising pursuant to European Law. The terms and extent of such legislation was a matter for the Oireachtas as long as the principle of equal treatment as set out in the Framework Directive was achieved.

 Appling the provisions of Section 19(4) as applied by Section 29(4), in accordance with the principles set out in the above cases and the judgment of the Supreme Court in Stokes v Christian Brothers High School Clonmel, a number of issues can be identified. The first issue is to identify the neutral provision which was applied. The second issue is whether the Complainants by the imposition of the provision were placed at a particular disadvantage in terms of remuneration in comparison with other employees doing like work. The third issue is whether the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary, 8 [2015] IESC 13 29 58.

 In these cases, it is submitted that the neutral provision which was applied was that if the date of interview was after the 1st of October 2012, the higher rate of remuneration was only available to applicants who were serving permanent clinical consultants.  It is further submitted that the imposition of this provision placed younger consultant applicants at a particular and significant disadvantage and the nature of the requirement is such that a greater proportion of younger applicants were unable to satisfy the requirement than older applicants. This follows from the very nature of the requirement. However, in so far as it may be necessary, evidence including statistical evidence, will be provided to support this view.

 Insofar as the Respondents may seek to justify the imposition of the indirectly discriminatory provision, clearly the Complainants cannot answer any such suggested justification until the Respondents have set out their position in this regard.   However, as a matter of preliminary comment, it is not accepted that there is any basis to justify this indirect discrimination, on the basis of financial or other factors.

The Complainants allege discrimination on the basis of age and seek relief under Section 77 of the Employment Equality Act 1998, as amended (the EEA). Section 82 of the EEA provides for the redress which may be ordered by the Adjudication Officer.  The Complainants therefore seek:

• An order under Section 82(a) for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins up to and including 3 years before the date of the referral under Section 77(1) of the EEA.

• An order under Section 82(b) for equal remuneration from the date referred to above.

• An order under Section 82(e) that the Respondents take action, up to and including the immediate re-introduction of the pre-existing pays scales for all Consultants.

It should be noted that there are a number of respondents to this claim namely the Minister for Health, the Minister for Finance, the Minister for Public Expenditure and Reform and the HSE.

The Respondents submit that the Complainants were not discriminated against on grounds of age and that they are not entitled to relief before the WRC or otherwise under section 77 of the Employment Equality Act 1998, as amended (the "EEA").

The respondents submit that the CJEU decision in Horgan & Keegan v. The Minister for Education disposes of this case.    It determined that a measure such as that at issue in the present proceedings which, as of a specific date, provides for the application on the recruitment of new workers to a post at a salary scale and classification on that scale which are less advantageous than that applied, under the rules previous to that measure, to workers recruited before that date, does not constitute indirect discrimination on the grounds of age, there being no difference of treatment on the grounds of age where there is an application of a neutral provision which is manifestly unconnected to the ages of the persons concerned.  It is submitted that this decision of the CJEU is binding upon the WRC.

Moreover, the CJEU determined that such a measure did not constitute direct discrimination, there being no link between the measure and the age of the persons recruited.

In that context, it is submitted that the Complainant has not established even a prima facie case that they were treated less favourably than their chosen comparator in respect of receiving lower remuneration.

The Respondents submit that they are entitled to rely on Horgan & Keegan, which is on point and valid and subsisting. Equally so, in light of the decision of the CJEU, the Respondents are entitled to rely in turn on the statutory provisions of the EEA, namely s 19(5) and s 29(5), to demonstrate that the different rate of remuneration for the applicants is not discriminatory as it is paid on ‘grounds other than’ age.

The Respondents are not seeking to dis-apply national law by both relying on the said decision in Horgan & Keegan and availing of the said provisions of the Act.

By reason of the aforesaid it is submitted that the Respondents do not have to move to objectively justify the neutral provision.

ISSUE FOR DETERMINATION

The issue for determination is whether a measure which provides for the application of a salary scale and classification on that scale to the recruitment of new workers to a post, which scale is less advantageous than that applied under the rules prior to that measure to workers recruited before that date, can in the circumstances of this case constitute indirect discrimination on the grounds of age, where those in post at the present date are of a different age to those newly recruited to the post.

HORGAN & KEEGAN CJEU Decision

It is submitted that the legal issue in this case has been already determined by the CJEU in Horgan & Keegan v. The Minister for Education & Ors. This recent decision addresses the very issues raised by the Complainants in the within proceedings.

The Applicants in Horgan & Keegan qualified as schoolteachers in Ireland and as of the Autumn of 2011 they commenced employment as teachers in an Irish State primary school. The salary scales for newly recruited teachers contained in Circular 0040/2011 reduced as of 15th January 2011 the salaries by 10% at each point of the salary scale in relation to the salaries of public servants recruited before that date. Thus, all new teachers seeking appointment on or after 1st January 2011 were offered employment at a rate 10% lower prior to that date. Newly recruited teachers were therefore offered appointment at rates starting at the first point of the reduced pay scale whereas the salaries of those who had become teachers before 1st January 2011 were at a higher level. Mr Horgan and Ms Keegan challenged those measures before the Equality Tribunal claiming a difference in treatment on grounds of age. Their claims were dismissed by the WRC.

They appealed to the Labour Court. In the appeal the Labour Court requested a preliminary ruling from the CJEU on a number of questions, namely:

'(1) Does it constitute indirect discrimination on grounds of age within the meaning of Article 2(b) of Directive 2000/78/EC, for a Member State, in its capacity as an employer, to introduce lower salary scales for new entrants to the profession of national teacher while leaving unaltered the pay of those teachers already in employment, where:

(a)         the revised salary scales and the existing salary scales apply to all teachers in the respective categories regardless of their age.

(b)         at the point at which they were recruited and placed on the respective scales there was no difference in the age profile of those in the higher paid group and those in the lower paid group.

(c)          the introduction of the revised scales has resulted in a substantial difference in pay as between two groups of teachers who are engaged in work of equal value.

(d)         the average age of those placed on the reduced salary scales is lower than that of the average age of those on the original salary scales.

(e)         at the point at which the lower salary scales were introduced, the State's statistics showed that 70% of teachers appointed were 25 years of age or under and it was acknowledged that this was typical of the age profile of entrants to national teaching in any given year; and

(D national teachers who entered the profession in 2011 and later suffer a clear financial disadvantage in comparison to their teaching colleagues appointed prior to 2011.

(2)         If the answer to question 1 is in the affirmative, can the introduction of the lower salary scales be objectively justified by a requirement to achieve a medium- to long term structural reduction in the cost of the public service, having regard to budgetary constraints facing the State and/or the importance of maintaining good industrial relations with existing civil and public servants?

(3)         Would the answer to question 2 be different if the State could have achieved equivalent savings by reducing the pay of all teachers by a significantly lesser amount than the reduction applied only to newly recruited teachers?

(4)         Would the answer to questions 2 or 3 be different if the decision not to reduce the salary scales applicable to teachers already in employment was taken in compliance with a collective agreement between the Government as an employer and the trade unions representing public service workers whereby the Government committed not to further reduce the pay of existing public servants who had already been subject to pay cuts and the industrial relations consequences that would flow from a failure to comply with that agreement, having regard to the fact that the new pay scale introduced in 2011 did not form part of such a collective agreement?'

In answer to the first question the CJEU determined that the measure in question could not constitute indirect discrimination on grounds of age. Moreover, as the measure was not linked to age, it was not direct discrimination. The CJEU therefore did not need to address the remaining questions referred to it.

The reasoning of the CJEU was as follows: as the date of recruitment was the only relevant reason for the difference of treatment regardless of the age of the teacher at the date at which he or she was recruited, the application of the new rules was dependant exclusively on the date of recruitment and was an "objective and neutral factor"', which was manifestly unconnected to any taking into account of the age of the persons recruited.

In considering the matter the CJEU noted:

"24 The difference in treatment therefore results from the date of recruitment of the respective group of teachers, since that date determines whether the former or the new rules on the salary scale and classification on that scale are applicable".

It then went on to hold:

"25. Thus, the only relevant criterion for the purposes of applying the new rules on the salary scale and classification on that scale is whether the person concerned is a 'new entrant to the public service as of 1 January 2011', regardless of the age of the public servant at the date at which he or she was recruited. Accordingly, that criterion, which renders the application of the new rules dependant exclusively on the date of recruitment as an objective and neutral factor, is manifestly unconnected to any taking into account of the age of the persons recruited... the remuneration conditions introduced by Ireland were not based on a criterion which is inextricably or indirectly linked to the age of the teachers, so that it cannot be considered that the new rules establish a difference of treatment on the grounds of age".

Thus, the Court of Justice held that any difference in treatment was based on the date of recruitment rather than discrimination on the grounds of age.

It is submitted that the Complainants are incorrect in their assertion that the criterion identified by the CJEU was whether the teachers were 'new entrants'.   Rather it quite clearly stated at paragraph 25 of the Judgment that the difference in treatment results from 'date of recruitment'.

Furthermore, in Horgan & Keegan the CJEU considered the average age of the teachers on the date of recruitment.

"26. In addition, the referring court stated that although, at the time of their recruitment, Mr Horgan, Ms Keegan and the majority of the other teachers recruited after 1 January 2011 were younger than the teachers recruited before that date, in as “much as at that date approximately 70% of them were 25 years of age or under, it is also common ground that irrespective of the year of recruitment, both the teachers recruited after 1 January 2011 and those recruited before that date were on average 25 years of age or under".

In other words, the age of 25 was typical of the age profile of recruits to national teaching. In any given year, the majority of applicants for a position in that case was under 25 years of age.

Thus, an important feature of Horgan and Keegan was that the age profile of the cohort of those recruited at the time of recruitment was not substantially different from the cohort of teachers recruited before the regime changed.

Thus, the relevant age for the purpose of comparison is the age of complainant as compared with comparator as of the date of recruitment to their comparable post.   Given that age of a worker is mutable and changes over time, the only relevant date can be the date on which each was recruited to his or her respective post.

HORGAN & KEEGAN Decision applies to the present case

The material facts of the present case for the purposes of a complaint of age discrimination are on all fours with those of Horgan & Keegan and indeed arose out of the same factual context prevailing in Ireland. Crucially, the Complainants do not contend that there was any difference between the average age of consultants on first taking up post as between those appointed before 2012 and those appointed after 2012. It would of course be up to the Complainants to establish by evidence that there is any such difference, and they have not attempted to do so. If the Complainants contend that there is such a difference, then the Respondents reserve the right to call evidence on that point. Therefore, just as in Horgan & Keegan, there is no age difference at the date of recruitment between the two groups.

The Complainants however seek to distinguish Horgan & Keegan on three bases and submit:

(i)           That the career path of consultants is longer than that of teachers.

(ii)          That a significant majority of consultants have a history of working for different employers in the Health Service.

(iii)         The 30% reduction was uniquely applied to consultants, whereas the teachers' reduction of 10% was applied across the public service.

The Respondents submit there is no difference between Horgan & Keegan and the present case.

Length of Consultant Career path Irrelevant

The fact that the educational career path for consultants is longer and more complex than that for teachers does not change the fact that the recruitment criterion was manifestly unconnected to the age of the persons recruited. That was the point in Horgan & Keegan, not the length of the career path. The remuneration conditions were not based on a criterion which was either directly or indirectly linked to the age of the consultant. Therefore, there could not be a difference of treatment on the grounds of age.

Working History irrelevant

The Complainants suggest that Horgan & Keegan can be distinguished on the basis that many complainants have a history of working for different employers in the Health Service in the State. The Complainants have however not explained this.

The respondents submit that this is of no relevance to the legal principles to be applied in this case. It is also noted that when the Complainants were employed by different employers within the public health services, they would not have been consultants typically they would have been non consultant hospital doctors (NCHDs) training to achieve Specialist Registration so that they would be in a position to then apply for consultant posts.  Consultant posts are an entry grade within the Public Service -— in the same way that teaching posts are.

Level and scope of new scale irrelevant

In addition, the fact that the scale meant that 30% less was offered and that the level of reduction was different for other public service scales, is irrelevant to the legal principles to be applied the respondent argues. It has nothing to do with the question of whether there was indirect discrimination on the grounds of age. According to the respondent, the fact that the 10% reduction at issue in Horgan & Keegan was applied not only to teachers but across the public sector is again of no relevance nor consequence to the present case.

Although it would not make any difference if the Complainants were correct on the facts, they are also incorrect on the facts in so far as they plead that their situation was unique, whereas the situation of the teachers was not.   While a 10% reduction was applied across the public sector, the adjustment to salary offered to teachers had unique features peculiar to that profession. While the decision of the Government was to reduce the salaries and allowances offered to all new entrants to public service recruitment grades (including teachers) by 10% with effect from 1 January 2011, this decision also required that such new entrants would start on the first point of the applicable salary scale, In the case of teachers this had the effect of reducing their starting pay by a further 4-5%. Subsequently, In February 2012 the Government placed a cap on the overall level of qualification allowances that could be earned by teachers.

It is also submitted that the Labour Court in Horgan and Keegan gave a nineteen-page detailed decision, whereby the evidence of multiple Departmental officials was articulated.   The evidence is that different professions had different reductions to their remuneration, for example, veterinary inspectors’ reduction in renumeration amounted to an effective 23% reduction.

The respondents further submit that consultant doctors subject to the new pay scales post the recruitment date are significantly higher paid in comparison to the teachers in Horgan and Keegan.

In any event, the teachers also argued in Horgan & Keegan that their situation was unique to them. This ultimately had no legal relevance.

The respondents submit that the Complainants' claim in these proceedings is an attempt to re-litigate the same legal issue according to the respondent. The fact that a different category of worker and a different level of pay scale alteration is involved are of no legal relevance.   The fact that the new applicable pay scale offered to consultants newly recruited to the post is 30% less than those recruited at an earlier date, whereas a 10% differential was in question for the teachers, is of no significance for the application of the ratio of the said CJEU decision.

In essence, the rate of pay for those recruited to a post prior to a specific date was higher than that on offer after that date regardless of age.   As held by the CJEU, the date of recruitment is an objective and neutral factor in the application of the new pay scale. The new pay scale applied to employment on offer from that date regardless of age of any worker at the date of recruitment.

For there to be unlawful age discrimination, the different treatment must be attributable to age. That was not the case in Horgan & Keegan. For exactly the same reasons as in those proceedings, that is not the case in these proceedings and discrimination on the ground of age does not arise.

The WRC is bound by the decision of the CJEU in Horgan & Keegan and it is not distinguishable from the present case.

For these reasons, the Complainants cannot be successful in their cases. The Respondents in the present case submit therefore that Horgan & Keegan disposes of the matter.

FACTUAL BACKGROUND AND CONTEXT

While the Respondents contend that it is not necessary to objectively justify the decision to introduce a lower pay scale as of 1st October 2012, the background to the said decision is important to give context to the cases.

In the present proceedings, the cases involve a large number of claims, 966 in total, taken against the Department of Health, the Department of Finance, the Department of Public Expenditure and Reform, the HSE and other hospital parties, on the basis that they have been indirectly discriminated against on grounds of age by reason of the introduction of a lower pay scale for consultants which took effect from 1st October 2012.

The manner and reason for the change took place in the context of and as part of wider changes in the public service.   In June 2011, the Government introduced a public service pay cap of €200,000 per annum. The Government agreed at that time to defer consideration of the remuneration of hospital Consultants, at the request of the Minister for Health. This was intended to allow the Minister time to establish whether it would be possible instead to agree changes in the working hours and work practices of Consultants which would, in particular, support the work of the Special Delivery Unit and the HSE's Clinical Programmes in increasing efficiency and delivering faster access by patients to services and consequential reductions in expenditure based on these productivity changes.

In May 2012 Health Service management initiated a consultation process with the IHCA and WIO regarding implementation of reform under the Public Service Agreement 2010 — 2014 (Croke Park Agreement). Under the provisions of the Croke Park Agreement, the issues of reform were referred to the Labour Relations Commission (LRC). Agreement was reached at the LRC between the parties on work practice and other reforms.

While significant changes were agreed at the LRC, in themselves they were not sufficient to support the further recruitment of replacement and additional consultant at the existing pay rates. The Minister for Health made the proposal to reduce the salary rates for future hospital appointees by 30%, in the context of the need for maximum cost-effectiveness in the delivery of hospital services, the Government's wish to increase the number of hospital consultants at an affordable rate (while at the same time reducing the number of non-consultant doctors), and the need to bring remuneration rates for consultants more into line with those in comparable countries. The Department of Public Expenditure and Reform sanctioned the reduced scales on 21st September 2012, the sanctioning letter stating, "I am directed by the Minister for Public Expenditure and Reform to sanction a 30% reduction in existing rates for newly appointed medical consultants".

The scales took effect from 1 October 2012, applicable to those interviewed on or after that date and applicable to permanent and temporary contracts. The IHCA were advised by letter on 2 October 2012, which explained that the rates of consultant pay currently in force represented a significant element of health service cost and that it was not sustainable, in the light of the State's serious financial difficulties to continue to recruit at these rates. It was clearly explained that if the State was to continue to provide consultant-level career opportunities for doctors and, subject to the limitations on available resources, to replace consultants who retire and where possible to expand overall capacity, this could only happen on the basis of a lower-cost model.

In Horgan & Keegan the difference in treatment was found to result from the date of recruitment of the respective group of teachers, since that date determined whether the former or the new rate of pay was on offer.

That is factually the same as the present case, from the consultation process to the circulars changing the terms of employment, to the involvement of the representative bodies to the ultimate decision.

It is important to note that no vested interests were affected, in that there was no alteration to or reduction to agreed contractual remuneration. The Respondents offered employment at a certain rate of pay to prospective employees. This was the rate of pay on offer for the job and was applied to all those to whom employment was offered, regardless of age, race, gender, or any other protected ground.

THE PRIMACY OF EU LAW

The Complainants appear to contend that because the decision of the CJEU has been criticised by some parties, that it does not govern the matter. That is tantamount to saying that the decision of the CJEU does not apply and is not binding. This is rejected by the Respondents.

Further, in arguing that the application of a change in salary based on a date of recruitment is capable of constituting indirect discrimination on ground of age, the Complainants argue, in essence, that the analysis of the CJEU to the factual situation in Horgan & Keegan was incorrect.

Horgan & Keegan is a decision of the Court of Justice. Having regard to the principle of the primacy of EU Law, it applies to the extent that the WRC is bound by it.   The fact that the Complainants criticise its findings is irrelevant to the matters before the WRC.

The Irish Courts, including Tribunals and decision-making bodies applying EU law such as the WRC and Labour Court, are obliged to apply European law where it is relevant, even to the extent of dis-applying Irish law favour of the relevant European law. (Seda Kucukdeveci v. Swedex GmbH & Co KG and Minister for Justice, Equality and Law Reform and Commissioner of An Garda Siochana v. Director of the Equality Tribunal and Boyle, Cotter and Fitzpatrick.)

Where there is a relevant decision of the Court of Justice, in particular a decision which deals with the very issue arising in these proceedings, the decision of the CJEU applies. There is no valid reason proffered by the Complainants as to why the WRC is not bound by it.

LABOUR COURT DECISION

The Labour Court in Horgan & Keegan was bound by the decision in the preliminary ruling in the proceedings before it. It was not required to consider the interpretation of national law, in light of the answer to the question received from the CJEU, namely that the measure did not constitute indirect discrimination.

In Horgan & Keegan the Labour Court, in considering its position in relation to national law, determined that the measures challenged in that case did not constitute indirect discrimination on the grounds of age within the meaning of Article 2(2)(b) of Directive 2000/78/ EC of 27 November 2000.  It was pointed out that the Employment Equality Act, 1998 was enacted to give effect in national law inter alia to Directive 2000/78/EC. The Act must be interpreted and applied so as to achieve the purpose pursued by the Directive.  Accordingly, and having regard to the judgment of the Court of Justice in Horgan and Keegan, the Labour Court determined that the appeal failed. The decision of the Equality Officer was therefore upheld.

For that reason, the Labour Court was not required to consider section 29(4) or 19(4).   The CJEU had determined that the measure in question could not constitute indirect discrimination. There was neither need nor requirement for substantial argument or consideration of the meaning and/ or effect of the decision of the preliminary reference.

The Labour Court decision was not appealed on a point of law or otherwise judicially reviewed.

The same legal principle applies in the present case. The WRC is not required to consider section 29(4) or 19(4), given the clear decision of the CJEU that a measure such as the one in question, does not constitute indirect discrimination.

NO NEED TO MOVE TO OBJECTIVE JUSTIFICATION

Similarly, it is contended in this case that there is no need to move to objective justification.

DEFENCE OF ‘GROUNDS OTHER THAN’AGE UNDER THE EMPLOYMENT EOUALITY ACT 1998 AS AMENDED

If the Respondents can demonstrate that the difference in pay is for a reason or a ‘ground other than’ age, this affords a full defence to the within claim. 

It is the Respondents' position that there was no difference of treatment on the grounds of age. This is a defence under the Employment Equality Act 1998 as amended ("EEA") — a defence which exists separately from any attempts to objectively justify a difference in treatment that any difference in treatment takes place on grounds other than age.

A difference in treatment is not in law the same as discriminatory treatment. Different is not wrongful, discriminatory treatment is. The latter does not exist in this case.

The discriminatory grounds are set out in Section 6(2) and comprise what are known as the nine discriminatory grounds, with (f) relating to age discrimination.

The respondents submit that the Complainants' cases do not even get off the ground. All persons interviewed/ engaged by the State to work as Consultants as of the operative date were treated the same regardless of age. There is therefore no difference of treatment on grounds of age at all, either direct or indirect. Thus, there was no need for objective justification.

Certain provisions of the Act allow for different rates of pay to different employees.

In respect of the argument that the provisions of the Act allow for different rates of remuneration, Section 19(5) provides:

"Subject to subsection (4) nothing in this Part shall prevent an employer from paying on grounds other than the gender ground, different rates of renumeration” to different employees".

This Section expressly referred to in the "other grounds" section of the Employment Equality Act, Section 29(5) states that:

It is submitted that the provisions to which Section 29(5) is subject to are subsections on apparently neutral criteria, which amount to indirect discrimination.

In the present case, the CJEU has determined that a measure such as the one in question does not constitute indirect discrimination and is not relevant as the criterion in question, i.e., being employed at a certain date, does not put anybody of a particular age at a particular disadvantage as compared with another person of another age.

Section 29(5) allows for circumstances where an employer pays different rates of remuneration to different employees on a ground other than discriminatory grounds. In this case, the difference is by reason of a particular date on which a contract was entered and is far removed either directly or indirectly from the ground of age.

ADDRESSING SPECIFIC MATTERS IN THE COMPLAINANTS' CASE

The Complainants indicate at paragraph 13 that Circular 17/2012 was published on 28th of September 2012 and provides for a 30% lower salary to all newly appointed consultants at all points effective from 1st October 2012.  All criteria were relevant to that date, and not to age.

The letters referred to in the Complainants' submissions were issued to clarify issues that arose in giving effect to the decision to reduce the salary scales for all future entrant consultants.

The initial Circulars that issued giving effect to the reduction stated that the cut would encompass serving consultants who moved to a different clinical consultant post. This position was subject to considerable deliberation.  It was decided that it would be appropriate and necessary to allow serving consultants (pre-2012) to switch posts and retain their pre-2012 salary, on the basis that it was essential to enable consultant mobility, recruitment involving mobility and career progression, having accumulated consultant experience and/or to move to a more suitable post taking account of one's qualifications and expertise within public health services.

The letters issued in respect of the Circular did not fundamentally impact on the rationale for the decision or the equity in giving it effect. Any consultant who interviewed on the basis of the new consultant contract would have been aware of the content of the said Circulars at the relevant date.

The Complainants in their submissions point out that an applicant who interviewed after 1st October 2012 for a clinical consultant post could get the benefit of the more favourable scale if she/he was a "serving permanent clinical consultant" at that time, and that an applicant who could not satisfy this condition would not be entitled to the more favourable scale.   But this difference is referable to the fact that the persons who received the more beneficial remuneration and contract were already permanent consultants under the old contract.   In other words, the difference is for reasons unconnected to age.

This does not change the relevance of the operative date in this case, being the 1st of October 2012, which in no way placed younger applicants at a particular and significant disadvantage.

It is submitted that the changes were implemented following a LRC agreement between the employer and the IMO (a consultant representative body that is a party to the Public Service Agreement unlike the that arose from a recommendation made by the MacCraith Group:

"the working group recommends that the relevant parties commence, as a matter of urgency a focused timetable eye on engagement of short duration to address the barrier caused by the variation in rates of remuneration between new entrant consultants and their established peers that have entered since 2012".

The Public Service Stability Agreement 2013 - 2016 (Haddington Road Agreement) provided that the Minister for Public Expenditure and Reform would, in considering the application of the FEMPI reductions in 2013, take account of the 30% reduction. It stated that:

"New entrant consultants

Regard will be had by the Minister for Public Expenditure and Reform, in the application of the further reduction under the legislation to be enacted by the Oireachtas in respect of the remuneration over €65,000 p.a., to the exceptional original 2008 contracts in the 2018 High Court Settlement Agreement arising specifically from contractual clauses providing for that increase in the applicable contracts of those persons circumstances that relate to the 30% reduction in salary applied to new entrant consultants from October 2012, and the substantial inequity that would thereby arise”.

Retention of graduates of Irish Medical Schools

The parties have committed to review the current Public Health and Community Medicine, NCHD and Consultant career structure with the aim of further developing the career and training pathways from intern to consultants/specialist level. This will take account of service needs, training and service posts, the Health Reform Programme, the urgent requirement to reduce NCHD working hours and developments in relation to EU legislation. The overall objective is the retention of graduates of Irish Medical Schools within the public health system and the attraction back to Ireland of such graduates - where they have left previously. The management side and the IMO will begin the process by June 2013. "

The complainants claim that they continued to be left at a disadvantage despite the changes to the FEMPI reductions. In fact, the difference had been substantially reduced at the top of the type A and type B contracts, and to a lesser extent the type C, post 2012 scale following this process. The difference re-emerged in 2018 when the High Court settlement resulted in pre-2012 consultants going on to higher salary scales, reflecting an increase specified in the contracts of those who held those contracts. Post-2012 consultants do not have that term in their contracts.  This was led by the IHCA.

This is an example of a difference in the contracts that was agreed between the parties. It again highlights that the allegation of discrimination regarding age is untenable in that differences are permitted as non-discriminatory, if not related to age.

It is also important to note that the Consultant grade is an entry grade to the Health Services and recognised as such (in a similar fashion) in the Circular that gave effect to the 10% reduction in the pay of teachers. Consultant posts are an entry grade within the Public Service — in the same way that teaching posts in Horgan & Keegan are. Consultants were specifically recognised as such and subject to the 10% reduction applicable from 1 January 2011 as an 'entry grade'. The entry grade for Non-Consultant Hospital Doctors, Interns, was also subject to the 10 % reduction, whereas other NCHD grades that a doctor would move onto having completed the 'Intern' year, were not.

The argument is also made that the factual background of the Complainant is materially and crucially different from those of the applicants in Horgan & Keegan is therefore misconceived.   Such differences as there are make no difference to the applicability of the decision in that case.

The Complainants allege that an additional criterion was applied in relation to where an applicant was a "serving permanent clinical consultant." This has its roots in considering the rights of those who were already serving under the old contract.  It merely recognised the status and vested rights of the earlier cohort of Consultants.   Again, this had nothing to do with age.

 The argument that the this is an additional criterion which by nature is more easily satisfied by older applicants is misleading and wrong. It does not recognise the difference with the pre 2012 cohort of consultants who were contracted from an earlier point in time, under different conditions and in circumstances that were not relevant to their age.

It is suggested that the claim must be determined by the application of the relevant provisions of Irish law and in particular the EEA. That is tantamount to suggesting that Horgan & Keegan should not be applied by the WRC to the interpretation of Irish law. That is self-evidently incorrect.

The argument is made that the post-2012 consultants are likely to be younger than the pre-2012 consultants. The relevant question of course is not their age at present, but rather their age at date of appointment. In fact, there is no evidence of any significant age difference between the age at which post-2012 consultants took up their first job as compared with pre-2012 consultants.

Other than using the date of interview as an administrative tool to give effect to a date of implementation, with effect from 1st October 2012, all future consultants recruited were to lower scales, recognising the use of such scarce resources as were available to recruit the maximum number of consultants. Consultants who signed the contract did so in the knowledge of the salary scales that would apply on that particular date. Therefore, the Respondents can establish, pursuant to Section 29(5), that there are grounds other than the discriminatory ground for paying the complainants a lower rate of remuneration. The Horgan & Keegan case refers.

The argument that it is enough to establish indirect discrimination, that such provision places a person having that particular characteristic at a particular disadvantage in comparison to a person who does not have that characteristic, is a misplaced argument in the light of Horgan & Keegan.  Age was not a determining factor that was taken into account when the scales were reduced. That remains the case now.

While it is accepted that there are lines of authorities to the effect that there is no requirement to establish a causal connection in respect of indirect discrimination in the context of certain criteria, the reliance placed on the case of Nathan v. Bailey Gibson is inapplicable in the present case, given that the CJEU in Horgan & Keegan has already determined that a measure such as the one in question cannot constitute indirect discrimination.

In this case, insofar as the new entrants are comparing themselves with persons who were engaged in the workplace at a much earlier date, the parties are not similarly situated. Therefore, they cannot be compared at all in the first place.

Similarly, the Complainants have relied on the UK Supreme Court case in Essop v. Home Office wherein a similar determination was made in respect of sex discrimination of the claimant.   Again, this is materially different to the present case and indeed the facts of Horgan & Keegan. The latter is ample authority for allowing for circumstances where an employer can pay, on grounds other than discriminatory grounds, different rates of remuneration to different employees depending on the date of the contract in question.

Whilst it is not disputed that the statutory interpretation and, in particular, the plain and ordinary meaning of the words used in statutes is an important canon of statutory interpretation, there was no misread in the present case. While of course the interpretation of legislation is affected by the obligation of the Oireachtas to protect the principle of equal treatment as set out in the Framework Directive, the interpretation by the CJEU of EU legislation is binding on the WRC. Specifically, the decision of Horgan & Keegan is binding.

Indeed Section 19(5) and Section 29(5) of the EEA specifically allow for circumstances where an employer may pay, on grounds other than the discriminatory grounds, different rates of remuneration to different employees. The application of both the CJEU decision and the national legislation provides a full defence to this claim.

A critical statistical consideration in this case is that the ages of pre-2012 consultants at the time of their entering into their contracts was similar to the ages at the date upon which the more recent cohort entered their contracts. There is no difference in age, and therefore there is no age discrimination.

Therefore, it is not correct to say that the provision of 1st October 2012 or the fact that a higher rate of remuneration at that time was only available to applicants who were serving permanent clinical consultants placed younger consultant applicants at a particular and significant disadvantage. It is misleading to contend that the nature of the requirement was such that a greater proportion of young applicants were unable to satisfy the requirement than older applicants. Both cohorts are at the very least temporarily removed from each other, if not employed in different circumstances.

CONCLUSION

There was no discrimination on the basis of age and the Complainants are not entitled to relief under Section 77 of the Employment Equality Act, 1998, as amended.  

The Complainants are not entitled to redress as sought or to any relief.

The Complainants are not entitled to an Order under Section 82(a) for compensation or under Section 82(b) for equal remuneration or an Order under Section 82(e) that the Respondents take action up to and including the immediate reintroduction of the pre-existing pay scales for all consultants.

There is no incompatibility between Horgan & Keegan and the present case, and the matter at issue in these proceedings has already been determined.

The State has determined, other than for the contractual right of pre-2012 consultants to a higher pay scale, that the appropriate rates of remuneration for consultants are those applicable to all consultants recruited since 2012.   These scales were objectively justified by reference to the need for lower pay scale to support greater levels of consultant recruitment.   They are also relatively high by international standards.

Recruitment to the 2008 Contract has halted since the 8th of March 2023 (other than where an appointment was substantially concluded)), reflecting Government (and Oireachtas) policy to remove private practice from the public system.   The HSE is obliged to offer all new recruits the 2023 Public Only Contract and can no longer offer the 2008 Contract.  The rate of pay under the Slaintecare contract is the pre-2012 Type A scale.   Anyone who takes it up is getting the same rates of pay as those on the pre-2012 contract.   However, in return the contract provides for a significantly expanded working day Monday to Friday, Saturday attendance etc. in addition to not permitting private practice within the public system.    Most in claims, reflecting the take-up of contract types since 2012, are Type B contract holders with on-site private practice that they would have to give up after a transition period if switching to the new contract.

Relevant Legislation

Section 6 of the EEA

Discrimination for the purposes of this Act

(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 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,

Section 7 Like Work

 (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.

 (2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection

 (1) as employed to do like work (and, accordingly, in relation to the work which an agency worker is employed to do, an agency worker may not be regarded as employed to do like work). (3) In any case where—

(a) the remuneration received by one person (“the primary worker”) is less than the remuneration received by another (“the comparator”), and

 (b) the work performed by the primary worker is greater in value than the work performed by the comparator, having regard to the matters mentioned in subsection (1)(c), then, for the purposes of subsection (1)(c), the work performed by the primary worker shall be regarded as equal in value to the work performed by the comparator.

Section 8 Discrimination by Employers etc.

 (1) In relation to –

 (i) access to employment, (ii) conditions of employment, (iii) training or experience for or in relation to employment, (iv) promotion or re-grading, or (v) classification of posts, an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(4) A person who is 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.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one— (a) the same terms of employment (other than remuneration and pension rights), (b) the same working conditions, and (c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

Section 19 Entitlement to Equal Remuneration

(4) (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 remuneration compared with other employees of their employer.

(b) Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.

(c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B.

(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.

Section 28 The Comparators

(1) For the purposes of this Part, “C” and “D” represent 2 persons who differ as follows: (e) in relation to the age ground, C and D are of different ages.

 Section 29 Entitlement to Equal Remuneration

 (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.

(2) For the purposes of subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.

 (3) For the purposes of this Part, where D's employer is an associated employer of C's employer, C and D shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

(4) Section 19(4) applies in relation to C and D as it applies in relation to A and B, with the modification that the reference in it 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.

(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

Section 30 Equality clause relating to non-gender issues

(1) If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a non-discriminatory equality clause, they shall be taken to include one.

 (2) A non-discriminatory equality clause is a provision relating to the terms of a contract of employment, other than a term relating to remuneration or pension rights, which has the effect that if— C is employed in circumstances where the work done by C is not materially different from that done by D in the same employment, and at any time C's contract of employment would (but for the non-discriminatory equality clause)— (i) contain a term which is or becomes less favourable to C than a term of a similar kind in D's contract of employment, or (ii) not include a term corresponding to a term in D's contract of employment which benefits D, then the terms of C's contract of employment shall be treated as modified so that the term in question is not less favourable to C or, as the case may be, so that they include a similar term benefiting C.

 (3) A non-discriminatory equality clause shall not operate in relation to a difference between C's contract of employment and D's contract of employment if the employer proves that the difference is genuinely based on grounds which are not among those specified in paragraphs (a) to (h) of Section 28(1).

(4) Without prejudice to the generality of Section 8(1), where a person offers C employment on certain terms and, were C to accept the offer on those terms, the non-discriminatory equality clause in C's contract of employment would have the effect of modifying the terms in either of the ways specified in subsection (2), the making of the offer shall be taken to amount to discrimination against C in relation to C's conditions of employment on whichever of the discriminatory grounds is (or are) relevant to the difference (or differences) between C and D.

Section 31 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.]

(2) […]

(3) Subsection (1) shall apply with the necessary modifications in relation to— (a) the provision of any such services of an employment agency as are referred to in paragraphs (a) and (b) of Section 11(1), (b) participation in any such course or facility as is referred to in paragraphs (a) to (c) of Section 12(1).

 (4) Subsection (3) of Section 8 applies for the purposes of subsection (1) and, in so far as it relates to an employer, subsection (5) as it applies for the purposes of subsections (4) to (8) of that section.

(5) If a provision is such that, apart from this subsection, an employer or regulatory body would be regarded— (a) by virtue of subsection (1) […], as discriminating against an individual on the [civil] status ground or the family status ground, and (b) by virtue of Section 22, also as discriminating against the same individual on the gender ground the employer or regulatory body shall not be regarded as discriminating against that individual by virtue of subsection (1) […]

Section 85A of the Employment Equality Acts 1998- 2008, sets out the probative burden which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination.

The test for applying that provision is well settled in a line of Decisions of this Commission and the Labour Court and it requires the complainant to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, 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 required, their case cannot succeed.

Indirect Discrimination

A claim of indirect discrimination on grounds of age has been advanced and it is submitted that this is based on the 2012 pay cut which saw consultants who were appointed after 2012 receiving a 30% reduction in the pay scale which was applied to pre 2012 consultants.  It is submitted that the comparator group commenced work as consultant’s pre-1 October 2012 and so were entitled to the pre 2012 pay scale even in circumstances where they took up a different post in the period post October 2012 as they were entitled to retain their pre 2012 pay scale.    This followed from a communication issued on 14th of February 2014 which clarified that the 30% pay cut only applied to those who commenced employment in a consultant post for the first time after 1 October 2012 and that those who were already serving as consultants prior to this date were entitled to retain their original salary scale whether they remained in their post or transferred to a different post.

The complainants assert that this disproportionately affected a younger age group as it is submitted that the post 2012 consultants are of a younger age.

The case being advanced in this regard initially stated that the claim was one of discrimination.

‘arising from measures which took effect from the 1st of October 2012 when a 30% reduction was introduced pertaining to the salary payable to new entrant consultants as subsequently modified with effect from September 2014.’    Adding that the complainants ‘believe that these measures implemented in 2012, and subsequently, amount to indirect discrimination on the grounds of age under the Acts in circumstances where we are instructed that these measures have had a disproportionately significant impact upon younger consultants compared to their older comparators not so adversely affected.’

The complainants submit that there is no requirement to establish a causal connection between the discriminatory ground and the treatment.  The complainants as authority for this referred to the Supreme Court judgment in Nathan v Bailey Gibson, which they submit confirmed in respect of the Employment Equality Act, 1977, that there was no requirement to establish a causal connection in respect of indirect discrimination in the context of sex discrimination.  In the judgment of Hamilton CJ, he found that: “the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors that have relation to the plaintiff’s sex.”   The complainants assert that more recently, the UK Supreme Court in Essop v Home Office made a similar determination.

The respondents argue that where there is no causal link, no causation, there can be no discrimination.  The respondents as authority for this refer to the ECJ decision in Horgan and Keegan.

The complainants at the hearing argued that post 2012 consultants are younger on average than pre 2012 consultants and that the 30% salary cut thus affected a disproportionate number of consultants of a particular age group.   The complainants assert that the decision announcing the pay cut which was announced by the Minister in  September 2012,  was initially applied across the board to the salaries of all consultants pre and post October 2012, however, post the announcement and following communications between the consultants and the Minister, it was later clarified by letter dated 14th of February 2014,  that consultants who were recruited pre October 2012 would retain their original salary scale and would not be subject to this 30% salary cut, even in circumstances where they moved to a new or different post after 1 October 2012.   The complainants assert that this is a separate provision in and of itself and submit that that it is this provision which clarified that those in existing permanent consultant posts, would not be subjected to the 30% pay cut even if they moved posts after 1 October 2012.  The complainants assert that it is this provision which places younger consultants at a disadvantage.

The letter of 14th of February 2014 states as follows: “where a serving permanent clinical consultant is to be appointed to a clinical consultant post, the consultant concerned may be employed on the salary scale to which he/she was subject before that appointment.”

The complainants advised the hearing that ‘the nature of the provision is such that a greater proportion of younger applicants were unable to satisfy the requirements compared with older applicants who were serving permanent clinical consultants.

The respondents submit that the complainants have moved from a position where they were initially comparing all pre 2012 consultants to post 2012 consultants, to a position where they now seek to compare only those 2012 consultants who moved to a new position after 1 October 2012 and retained their pre 2012 salary entitlement, with the post 2012 consultants.  This, the respondent submits is an attempt by the complainants to differentiate the within case from the ECJ finding in the Horgan and Keegan case.

The respondents submit that the communications subsequent to the notification of the pay cut are not stand-alone provisions and that they amount to clarification of the previous decision to cut consultant salaries by 30% from 1 October 2012.  The respondents submit that the Government had no option but to clarify that those serving as consultants prior to 1 October 2012, that is pre 2012 consultants were entitled to retain the salary scale to which they had been appointed, in accordance with their contracts even if they moved posts.   The respondents submit that to do otherwise would reduce any mobility between pre 2012 consultants.

In addition, the parties to the hearing outlined that legal action had been taken by the IMO and the IHCA in respect of pre 2012 consultants in circumstances where their contractual entitlements were not being fulfilled.  This resulted in a 2018 High Court settlement which saw contractual terms in respect of salaries restored in respect of a large cohort of pre 2012 consultants.   

It is argued on behalf of the complainants that following the announcement of the 30% pay cut the subsequent communications in respect of this cut which clarified that pre 2012 consultants would retain their original salary whether they stayed in position or moved to a new position amount to a neutral provision which disproportionately affects post 2012 consultants whom they submit are on average 10 years younger in age than pre 2012 consultants.

The complainants assert that this is one of the issues which differentiates the current case from that of the teachers’ case in Horgan and Keegan.   The complainants submit that that Horgan and Keegan relates purely to a provision which saw teachers appointed after a certain date subjected to a 10% pay cut.  It is submitted by the complainants that the case being argued in respect of the consultants differs from the teachers’ cases as it is not predicated on the 30% pay cut but rather on the later communications which saw serving permanent consultants restored to their original salary even if they moved to a different post.

In examining this argument, I note that the case being advanced on behalf of the complainants is that it is the subsequent communications which clarified that consultants who had been appointed as consultants prior to October 2012 but who moved  to another position, post October 2012 and retained their entitlement to the pre 2012 salary placed younger consultants at a disadvantage as they could not meet the criteria of being a ‘serving permanent clinical consultant prior to 1 October 2012’.

Statistics

The complainants in support of this argument submitted statistical evidence in the form of a statistical report and witness testimony from Dr James Sweeney, Senior Lecturer in Statistics, at University of Limerick, which supported their argument that on average the pre 2012 consultants were older than the post 2012 consultants taking their ages at a given date as of 22 April 2022.  The complainant’s statistical witness Dr Sweeney provided evidence at the hearing in this regard in support of his statistical report.

The statistical evidence adduced by the complainants indicated that the ages of both groups differed by about 10 years when taking the ages of the groups at a particular point in time i.e., the pre 2012 group were on average 10 years older than the post 2012 group when taking their ages on 22 April 2022.

The respondents also provided a statistical report produced by Professor Simon Wilson who is a Professor in statistics at Trinity College Dublin.  Professor Wilson’s evidence did not differ greatly from that of the complainant’s statistician Dr Sweeney regarding the average age of consultants in receipt of the pre 2012 salary scale and those in receipt of the post 2012 salary scale.  

The respondents at the hearing argued that it is not unexpected to find that consultants recruited after 2012 would be younger than those recruited pre 2012 when taking their ages at a particular date in time i.e., 22 April 2022.  The respondents stated that it is obvious that those consultants recruited at a later date would obviously be younger than those recruited at an earlier date.  By way of example the respondent at the hearing submitted that as and between a father and son who were both consultants with the father being appointed in 1990 and the son appointed in 2024 there is always going to be a difference of that time period in age terms between the groups that both occupy.   It is submitted that both consultants would clearly be of different ages as the son would have received his qualifications and commenced employment years later than his father.

Similarly, both statisticians conducted an analysis of the data considering the ages of the pre 2012 consultants who subsequently applied for new consultant posts post 2012 and who retained their original salary scale and were thus paid at a higher rate than post 2012 consultants who were subjected to the post 2012 salary scale. 

 Again, the statistical evidence and analysis showed that the post 2012 consultants on the lower pay scale were on average 10 years younger than the post 2012 consultants who had started pre 2012 but who had changed posts, post 2012 and thus retained their original pre 2012 pay scale.

Again, the respondent submits that this is again another expected outcome submitting that it is obvious that those consultants who were entitled to retain the pre 2012 salary when applying for a different post in the period post 1 October 2012 would of course be older than the group who were commencing in new posts for the first-time post 1 October 2012 taking their ages at a given date.

In examining this I note that the statistical analysis carried out by the statisticians for both sides was broadly in agreement in that the results showed that post 2012 consultants were on average about 10 years older than pre 2012 consultants and that this applied similarly to the pre 2012 consultants who retained their original salary scale whether they moved to a new post after October 2012 or not again when taking their ages at a particular date in time i.e., 22 April 2022. 

Date of Appointment as Consultant

However, the respondent argued that the comparison of the two groups taken at a particular date in time was always going to yield the outcomes arrived at, but the respondents submit that it is the age of both groups of consultants at date of appointment as consultants which should be examined in order to ascertain whether or not a particular age group is disproportionately affected by an apparently neutral provision.  The respondents submit that the CJEU judgementin Horgan and Keegan in its examination of the teachers claim concluded that it is the age of the groups at date of recruitment which is the relevant date from which the comparison should be made and not the average ages of the complainant and comparator groups at a given date in time which is proposed by the complainants.

The respondents also made a number of points in respect of the age span of the complainants and comparators and the particular age group which it is asserted are being disadvantaged.  In this regard the respondent points out that the youngest of the lead Complainants is 43 and the oldest 63, being an age span of 2 decades. The respondent also highlighted that the difference in age between some of the lead Complainants and their chosen comparator is less than 2.5 years.   This would mean that if the ‘line in the sand’ was two years and seven months later than October 2012, this comparator would be paid be the same as this complainant. 

The respondents also referred to the fact that many of the lead Complainants are in fact older or the same age as the chosen comparators of other lead Complainants.     The respondents state that there has simply been no evidence adduced by the Complainants to identify the particular age cohort allegedly disadvantaged by the measure in question or how each of the lead Complainants falls within that age cohort.

Conclusions

Section 85A of the Employment Equality Acts 1998- 2008, sets out the probative burden which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination.

The test for applying that provision is well settled in a line of Decisions of this Commission and the Labour Court and it requires the complainant to prove the primary facts upon which they rely in seeking to raise an inference of discrimination.

Indirect Discrimination

In examining the arguments advanced by the complainants, I must firstly, identify the neutral provision from which the alleged discrimination flows, is it the 30% pay cut applied post 1 October 2012 or is it the subsequent communications which clarify how the pay cut is to be applied/not applied to existing or pre 2012 consultants in circumstances where they moved posts after the 1 October 2012.  

It is clear to me from the evidence adduced that, in September 2012, the Department of Health directed the introduction of a reduced pay scale to be applied to new entrants to consultant roles. Department of Health Circular No. 3/2012, dated 26 September 2012 to the HSE National Director of HR conveyed the Minister’s approval for the application of the reduced new entrant consultant scale from 1 October 2012 on the following basis:

 “Those who have been offered contracts at the 2011 rates are not affected. Those who have been successful at interview and are awaiting PAS and/or HSE clearance are not affected. Where selection process is in train or not yet commenced Any posts that are to be filled from interviews which have not yet taken place will be subject to the new scales.”

Further, on 28th September 2012, HSE HR Circular 17/2012 was published. In this circular, the HSE, advised that “the Minister for Health has approved revised salary rates for new entrant Consultant Medical Staff effective from 1st October 2012.” This circular indicates a 30% cut to salaries to all newly appointed consultants at all points and includes pay scales indicating this reduction.   By letter dated 4 December 2012 from the Department of Health to the HSE, further change was implemented in respect of the application of the 1 October 2012 criteria to new entrants.  A further communication dated 14 February 2014 clarified that pre 2012 consultants or serving permanent clinical consultants who moved to a different post after 1 October 2012 were entitled to retain the pre-October 2012 salary scale.

The Complainants’ case of indirect discrimination is that a provision which provides for the payment of higher remuneration to Pre-2012 Consultants, is ostensibly a neutral provision but one which places Post-2012 Consultants at a particular and significant disadvantage.

The case that the Complainants are seeking to advance is that, amongst all appointments made on or after 1st of October 2012, there is a discriminatory difference in pay between different cohorts within that group.   The complainants submit that one cohort of those new entrants is a group who previously held a consultant post (Pre-2012 Consultants).   The other cohort are newly appointed consultants who are appointed to their first consultant post after 1 October 2012.  The complainants submit that it is this difference in treatment between appointments made after 1 October 2012 that they allege constitutes indirect discrimination on the grounds of age, the case being made is that it disadvantages younger Consultants generally compared to older ones.

In advancing their case the complainants have sought to assert that the discriminatory provision or the neutral provision from which the alleged indirect discrimination flows was in fact the letter of 14th February 2014 which clarified that pre 2012 consultants who had been on the pre 2012 pay scale and who had subsequently applied for a different job post October 2012 would retain their previous pay scale upon moving to a new post.

The complainants assert that it is this provision which is the neutral provision which places the younger consultant group or post 2012 consultants at a particular disadvantage as compared to pre 2012 consultants.

In considering this argument I must firstly look at how this additional provision or clarification applies to pre and post 2012 consultants. The complainants in this regard belong to the group of consultants taking up a position for the first-time post 1 October 2012 i.e., newly appointed to the consultant position from 1 October 2012.   In examining the argument advanced in respect of the 14th of February 2014 communication, it is clear that it does not apply to the post 2012 consultants at all but only applies to those who held a consultant post pre-October 2012. 

It is common in industrial relations, whether in the private sector or public sector, that the principle of ‘what you have, you hold’ generally applies.   It is clear that the 2014 communication is simply a clarification of this long-held principle.  If a pre-2012 consultant did not retain his or salary on moving roles at the same grade, consultants would simply not apply for lateral moves which in the context of this case could have ‘life or death’ consequences.

In addition, in the Horgan and Keegan case it was also the case that teachers recruited at an earlier date before the cuts were made, held onto their salary entitlements even if they moved posts. 

In examining this matter, I note that the clarification in the 14th of February 2014 letter is a provision which does not apply to post 2012 consultants as it is a provision which can only apply to pre 2012 consultants.

I note that the respondent in its submissions submits that during this time the complainants and comparators are not similarly situated and that that they are at least temporarily removed from each other.

In examining this matter, I note the approach adopted by the CJEU in YS v NK.    In that case which related to the indexation of pensions, national legislation in Austria provided that an occupational pension which an employer was contractually bound to pay directly to its former worker must have a proportion of tax withheld at source by the employer.

This meant that there was a reduction in the amount of the pension the undertaking could pay to the former worker. This only affected employees who were in receipt of a defined benefit pension. On the facts, the national law applied to more older workers because no defined benefit pension contracts had been concluded after 2000.

As regards the age element of the claim, the CJEU ruled that the persons placed at a disadvantage by the legislation could not be compared with persons that did not come within its scope, (e.g., those who had concluded a pension contract for a different type of pension).

In applying that reasoning to the present claim, I note the complainant’s submission that it is this subsequent clarification which amounts to the neutral provision which they submit is more difficult for the complainants to attain, however, it is clear to me that it is not the case that this provision is more difficult or less attainable for the complainant, but that it is in fact impossible for the complainants to attain and so it is clear that this provision does not apply to the complainant group or cannot apply to them.  Thus, I am satisfied that the complainants do not come within the scope of that provision and so the only relevant neutral provision which affects both the complainants, and the comparator group is the 30% cut of 1 October 2012, and so I am satisfied that it is this 30% cut which is the relevant neutral provision which applies to the complainants and thus taking this as the relevant provision any allegation of discrimination must flow from this provision.   

So, in essence the case before me for examination, is whether the 30% pay cut applied to consultants from 1 0ctober 2012, disproportionately affects a younger age group.

I now return to the argument being made by the respondents that that the comparison of the two groups taken at a particular date in time was always going to yield the outcomes arrived at, but that it is the age of both groups at the date of appointment to their first consultant post or date of recruitment which should be examined in order to ascertain whether or not a particular age group is disproportionately affected by the apparently neutral provision.

It is clear from the statistical evidence adduced by the complainants that the post 2012 consultants to whom the 30% pay cut applies are younger than the pre 2012 group who were paid and continued to be paid at a higher scale.    This evidence was deduced by taking the ages of the groups at a particular date in time i.e., 22 April 2022.

The respondents submit that it will always be the case in respect of any pay cut applied across the board at a particular date in time and that the later recruits or appointees will almost always be younger than the group recruited prior to the pay cut.

The respondents further submit that a meaningful examination and comparison of the two groups cannot be derived by looking at the ages of the two groups at a particular date in time (22 April 2022) but that the only meaningful examination of an allegation of indirect discrimination on the grounds of age must look at the ages of the two groups at the date of appointment or date of recruitment as set out in Horgan and Keegan. 

The respondent submits that it is only by looking at the ages of the complainant and comparator groups at the date of their appointment to the consultant role that we can ascertain whether or not a particular group is placed at a disadvantage by the introduction of an apparently neutral provision.

The respondent as authority for this submits that at the forefront of this argument is the teachers’ case of Horgan Vs Keegan.  The respondent states that the within case in on all fours with the teachers’ case and that the decision handed down by the CJEU in respect of that matter found that there was no indirect discrimination on grounds of age as the salary cut was based on the date of recruitment and not on the age of the complainants.

The respondent goes on to assert that this decision by the CJEU is authority for the argument that it is the age of the two consultant groups or the complainant and comparator groups at their date of recruitment/appointment and not the ages of the two groups/individuals, at a specific date in time which is relevant to the within claims.          

The respondents submit that it is the age of consultants at their date of appointment i.e., date of recruitment which is the deciding factor in this case and is at the root of this claim.   The respondents go on to state that an analysis of the statistical data based on this parameter will show firstly, that there is no difference in age between the two groups as at their date of recruitment and thus, the case to be examined is whether the neutral provision disproportionately affects a particular age group as compared to an older age group when taking their age at date of recruitment as the point in time for comparison purposes.

The respondents in setting out this argument additionally submit that a statistical analysis and the evidence adduced by its statistical expert Professor Wilson, does in fact show that the ages of both groups at their date of recruitment are not materially different, and so the respondents argue that a neutral provision applied, based on the date of recruitment does not support the complainants assertion that post 2012 consultants in a particular age group are disproportionally affected by the Government decision to apply a 30% pay cut to post October 2012 consultants.

In this regard the respondents statistical witness Professor Wilson stated

“I also looked at the age at which the two groups took up their first post and for that I discovered no significant difference in average age between the two groups. So, for consultants between those two dates, if you look at, for those for whom it was a first post, if you look at their average age and you compared it to the average age for those for whom it was a subsequent post and looked at their age when they had taken up their first post, there was no difference in those average ages.”

In examining this matter, I note that the complainants in advancing their case have picked an arbitrary date of 22 April 2022 from which to derive the ages of the consultants for the purpose of the statistical analysis.   I note the arguments advanced by both sides in this regard and I am satisfied that a comparison of the two groups at a particular point in time where one group is recruited before October 2012 and the other after that date yields results which show that the group recruited earlier are on average older than the group recruited at a later date when taking their ages at a particular date in time.   

However, I note the argument made by the respondents that a more meaningful comparison can be derived by comparing the ages of both groups on their date of recruitment or date of appointment.     In considering this point and having regard to the ECJ decision in the Horgan Keegan case I am satisfied that the appropriate comparison is to compare the ages of both groups at the point or date of recruitment or in this case the date at which they first became a consultant.

I am also mindful of the CJEU decision in Curtea de Apel Alba Iulia and Others v YF and Others a case in which Judges alleged discrimination on grounds of age in respect of former judges who had benefitted from a salary increase whereas the complainants were paid less because they commenced employment after a framework law reducing wages came into effect.   The decision of the CJEU in that case reinforces the decision in Horgan and Keegan.

The statistical evidence adduced in the present case by Professor Wilson concludes that the average age of both groups of consultants at their date of appointment was the same.   This also holds true for the smaller pool of pre 2012 consultants who moved posts after 1 October 2012 and retained their original salary scale.   I note that the complainants did not dispute this evidence.

Professor Wilson referred to this as a comparison of the ‘new joiner ages’ of the 2 groups, that is, the age at which consultants in the 2 groups took up their first post.   The comparison carried out was between consultants who took up a post between 01/10/2012 and 31/12/2013 as their first post versus those who had already been serving elsewhere.   This was based on data on consultants who took up a post between 01/10/2012 and 31/12/2013.

Professor Wilson concluded that the first group, taking up a first post between 01/10/2012 and 31/12/2013, the average new joiner age is 41.1 years.  For the second group, already serving when taking up a post between 01/10/2012 and 31/12/2013, the average new joiner age is 41.5 years.  Professor Wilsons conclusion is that the ages at taking up the first post of those consultants taking up a post between 01/10/2012 and 31/12/2013 are no different between those for whom this is a first post versus those that were already serving.   He also notes that the new joiner age of consultants has consistently risen between 2000 and 2020 by about 6 weeks per calendar year on average.    The complainants did not dispute this evidence of Professor Wilson.

In looking at the present case then on the basis of the date of recruitment/appointment and comparing pre and post 2012 groups on that basis I note that a comparison of the average age of the consultants in both the complainant and comparator groups at their date of appointment as consultants does not support the complainants assertion that the post 2012 group is significantly younger than the pre 2012 group.   I am satisfied having considered the evidence adduced that the correct measure of comparison between the two groups is the age at date of appointment and I note that the ages of the complainant and comparator groups when taken at their date of appointment do not differ significantly in age.

Accordingly, I am satisfied that the complainants have failed to establish that the complainant group at their date of appointment/recruitment were younger than the comparator group and so it follows that the complainants have failed to establish that the 30% salary cut affected a disproportionate number of consultants of a particular younger age group.     Accordingly, I am satisfied that the complainants have failed to establish a prima facie case of Indirect discrimination which would have to be rebutted by the respondent in accordance with Section 29 (4) Objective justification.

In reaching this conclusion I am mindful of the ECJ decision in respect of Horgan and Keegan which states that:

….” a measure such as that at issue in the main proceedings which, as of a specific date, provides for the application on the recruitment of new teachers of a salary scale and classification on that scale which are less advantageous than that applied, under the rules previous to that measure, to teachers recruited before that date does not constitute indirect discrimination on the grounds of age within the meaning of that provision.”

I note that the Court concluded in that case that no prima facie case of discrimination had been made and the complaint failed.    I also note that the ECJ and the subsequent referral of the case to the Labour Court deemed it unnecessary to examine the Objective Justification for the provision as a prima facie case had not been established by the complainants.

I am satisfied having considered the evidence adduced that the complainants have failed to establish a prima facie case of Indirect discrimination on grounds of age and so the claim of Indirect discrimination fails and thus there is no requirement for the respondent to provide objective justification.

However, for the record the respondent’s position in respect of Objective Justification may be summarised as follows:

Objective Justification

(4) (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 remuneration compared with other employees of their employer.

(b) Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.

The respondent at the hearing submitted that the salary cuts were implemented to meet a legitimate aim which was essentially to increase and protect public health by recruiting more consultants for the same money” as well as the need to bring remuneration rates for consultants more into line with those in comparable countries.   The respondents adduced evidence that the cuts to consultant’s salaries were at a time of deep recession in the Republic of Ireland and at a time when all public servants took proportionate cuts in salary which were appropriate and necessary at that time. 

The respondent provided the background to the salary changes submitting that the manner and reason for the change took place in the context of and as part of wider changes in the public service.   In June 2011, the Government introduced a public service pay cap of €200,000 per annum. The Government agreed at that time to defer consideration of the remuneration of hospital Consultants, at the request of the Minister for Health. This was intended to allow the Minister time to establish whether it would be possible instead to agree changes in the working hours and work practices of Consultants which would, in particular, support the work of the Special Delivery Unit and the HSE's Clinical Programmes in increasing efficiency and delivering faster access by patients to services and consequential reductions in expenditure based on these productivity changes.

In May 2012 Health Service management initiated a consultation process with the IHCA and WIO regarding implementation of reform under the Public Service Agreement 2010 — 2014 (Croke Park Agreement). Under the provisions of the Croke Park Agreement, the issues of reform were referred to the Labour Relations Commission (LRC). Agreement was reached at the LRC between the parties on work practice and other reforms.

While significant changes were agreed at the LRC, in themselves they were not sufficient to support the further recruitment of replacement and additional consultant at the existing pay rates. The Minister for Health made the proposal to reduce the salary rates for future hospital appointees by 30%, in the context of the need for maximum cost-effectiveness in the delivery of hospital services, the Government's wish to increase the number of hospital consultants at an affordable rate (while at the same time reducing the number of non-consultant doctors), and the need to bring remuneration rates for consultants more into line with those in comparable countries.

The scales took effect from 1 October 2012, applicable to those interviewed on or after that date and applicable to permanent and temporary contracts.

Evidence was adduced from senior civil servants in the Departments of Finance, Health and Public Expenditure and Reform as well as the HSE.  Ms. Louise McGirr, Assistant Secretary from the Department of Health advised the hearing that Consultant’s salaries in Ireland were much higher than those paid to consultants in the UK or in other European countries which supported the decision for the 30% reduction in Consultants’ salaries. The hearing was advised that Ireland was an outlier and continues to be an outlier in terms of the high salaries being paid to consultants in comparison to other countries.   Evidence was adduced that the salary scale for a Type A contract had been reduced to a band spanning €116,207 to €121,270 following the October 2012 cuts which it is submitted was still a high starting salary for a consultant compared to other OECD countries.

The respondents adduced evidence that the reduction in salaries had been appropriate and necessary stating that the measures had worked and that the model introduced in 2012 has led to an increase the number of consultants recruited within the same pay envelope.  The evidence adduced indicated that the number of consultants recruited had increased from 2012 to 2022 indicating that the pay scales while lower than the 2012 rates remained attractive to consultants as they were still applying for and taking up positions within the Irish Health service.  

Evidence was adduced from Ms. Claire Doyle Economist in the Department of Health who advised the hearing that consultant numbers in whole-time equivalents have increased from 2,514 in December 2012 to 3,864 in February 2023 representing an increase of 54%.   Ms. Doyle went on to state that there was a slight slow in recruitment directly after the 2012 reduction but added that it then continued to increase once the consultants realised the reductions were here to stay.   Evidence was also adduced in respect of the savings made by the 30% new entrant consultant salary cut and the estimated savings from 2013 to 2022 were cited as €439.8 million.

The respondents also adduced evidence that it was agreed by the Government in 2019 to move towards the long-term goal of universal, single-tier healthcare, with public hospitals to be exclusively used for the treatment of public patients, including private patients opting to be public patients, as envisaged in the Sláintecare Report (2017), the Sláintecare Implementation Strategy (2018) and the Report of the Independent Review Group (2019).

The new Sláintecare contract has since been produced which restores the previous pay scales to the pre 2012 Type A contract rates but with expanded hours of work and does not permit private practice within the public system.  Anyone who takes it up is getting the same rates of pay as those on the pre-2012 contract.    This contract has been offered to those on the October 2012 contract and many consultants have opted to move to that new contract.  

Direct Discrimination in respect of an entitlement to Equal Pay with a named comparator

It is submitted that the complainant who is one of 11 test cases representative of the wider number of 181 complainants and 966 claims, has been paid less than their chosen comparator on the grounds of age.

The case being presented in that regard is that the complainant and comparator perform ‘like work’ as defined in Section 7 and have similar qualifications, experience and training but are paid differently due to their age. 

The complainant acknowledges that their comparator who is on a higher pay scale commenced working as a consultant prior to the implementation of a 30% pay cut effective from 1 October 2012.       The complainant acknowledges that they commenced employment as a consultant post the 1 October 2012, 30% pay cut and are subject to the lower PayScale which came into force from that date.

In order to establish an entitlement to Equal Pay a complainant must firstly establish that they perform ‘Like work’ with their comparator as outlined in Section 7.   Evidence was adduced in respect of the complainant and comparator in this regard.  

In the present case evidence was adduced in respect of the complainants age, education qualifications experience, and training, and that of their comparator.  

Complainant and comparator summary

The complainant in this case, Dr Olga Mikulich was appointed to a permanent consultant post on 2nd October 2017. Dr Mikulich’s specialty is Respiratory Medicine as well as General Medicine.  She is aged 55.  As per her claim form, her comparator is Dr Francis J. Kelly, a Consultant in Nephrology and General Internal Medicine at University Hospital Waterford. He is aged 58.  The comparator is 2.27 years older than the complainant

Evidence was adduced in respect of Dr Mikulich’s training, qualifications, and experience.   Evidence was also adduced in respect of the comparators experience and career to date.

It is clear from the evidence adduced that the comparator is older than the complainant and that the comparator is in receipt of a higher salary than the complainant.  It is also clear from the evidence adduced that the complainant is in receipt of the post 1 October 2012 pay scale which is 30% less than that paid to the comparator.

In the present case the complainant has identified a comparator of a different age who is engaged in like work and who is paid a higher salary.   The complainant has established that they perform like work with a named comparator who is older than the complainant.    

The complainants’ representative submits that this is enough to raise a prima facie case of direct discrimination on grounds of age and asserts that this should then be objectively justified by the respondents.  

I note however, that the defence to a claim of Equal Pay in respect of direct discrimination is set out in Section 29 (5) which provides for the payment of different rates of remuneration on ‘grounds other than’ discriminatory grounds.   This is reflected in the numerous Equal Pay decisions issued by the Commission and by its predecessor the Equality Tribunal.

The complainant submits that they have reached the threshold for establishing a prima facie case in respect of the claim of direct discrimination regarding an entitlement to Equal Pay.  The complainant submits that all that is required to reach that burden is to establish that the complainant and comparator of differing ages are engaged in ‘like work’ and are receiving different levels of pay.    In addition, the complainant submits that the burden of proof should now move to the respondent in defence of the Equal Pay claim.

The complainant criticised the respondents for intermingling or blending the two aspects of the claim during the hearing and sought in their closing arguments to separate both aspects of the claim in order to advance emphasise their argument that the burden of proof required for an Equal Pay claim in respect of direct discrimination is simply to show that the complainant who is younger than the named comparator and who is engaged in ‘Like work’ is paid at a different rate.

The respondent submitted that the complainant in order to establish a prima facie case of direct discrimination had to show that they were treated less favourably on grounds of age.

The complainant submits that the respondent is misplaced in submitting that there must be a connection between the discriminatory ground and the treatment complained of in respect of an entitlement to Equal Pay and submits that in making such assertion the respondent is superimposing the Section 6 burden of proof in respect of discriminatory treatment into the provisions of Section 19 and 29 which provide for the entitlement to Equal Pay.

In addition, the complainant argues that having established an entitlement to Equal Pay with a named comparator the burden of proof then moves to the respondent to defend the claim.   The complainant asserts that the respondent must at this point provide Objective Justification for the difference in the rates of pay. 

In examining this argument, I note that Section 29(1) of the Act provides a general entitlement to equal pay as between persons who are differentiated on any of discriminatory grounds and who are engaged in like work.  Thus, it is sufficient in the present case for the complainant to establishthat the complainant and comparator differ in age, are performing ‘Like work’ and are paid at different rates, in order to establish an entitlement to Equal Pay.  

However, I do not agree with the complainant’s assertion that having established an entitlement to Equal Pay, the respondent in order to defend the claim must provide Objective Justification for the difference in Pay. 

In examining the Equal Pay provisions as set out in Section 19 and 29 of the EEA it is clear that once an entitlement to Equal Pay has been established in respect of a claim of Direct Discrimination that the defences open to a respondent in such circumstances are those defences set out in subsection 19(5) or in the case of an age claim Section 29(5) of the Act i.e., the ‘grounds other than’ defence.  I note that the defence of Objective Justification is set out in section 19(4) and 29(4) and is the required defence where a prima facie case of Indirect Discrimination has been established.   I have already made a finding that the complainants in this case have failed to establish the burden of proof in respect of the claim of indirect discrimination and accordingly the defence of Objective justification was not required.  

I am satisfied that the defence to a claim of Equal Pay in respect of direct discrimination is set out in Section 29 (5) which provides for the payment of different rates of remuneration on ‘grounds other than’ discriminatory grounds.   This is reflected in the numerous Equal Pay decisions issued by the Commission and by its predecessor the Equality Tribunal.

The defence to the Direct Discrimination claim in respect of an entitlement to Equal Pay for ‘Like work’ is set out in Section 29(5) which provides for the payment of different remuneration to employees on grounds other than the discriminatory grounds. It provides as follows: -

• “nothing in this part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees”.

The complainant in this case has established that they are performing ‘like work’ with a named comparator who is older in age than the complainant.

The defence which is open to the respondents in respect of a claim of entitlement to Equal Pay is the “grounds other than” defence contained in Section 19(5) in respect of a gender pay dispute and Section 29(5) for other grounds including the age ground.   Therefore, it is incumbent upon the respondents to show that there are ‘grounds other than’ the protected characteristic for the difference in pay, in this case ‘age’, for the pay differential.

The body of caselaw in respect of Equal pay claims derives from gender cases and differences in pay based on gender.  In such cases the onus of proof is on the employer to prove that the differentiation is genuinely attributable to grounds other than sex for example in Irish Crown Cork Co. v Desmond and in Minister for Transport, Energy and Communications v Campbell. Both of these cases concerned the practice of “red circling”.

The respondents dispute that the complainant has established a prima facie case in respect of an entitlement to Equal Pay but have submitted that where a differential exits there are ‘grounds other than’ age for the difference in pay between the complainant the comparator.

The respondents submit that there are ‘grounds other than’ which explain the difference in Pay.  In outlining the grounds other than the respondent advised the hearing that the complainant is paid at a lower rate firstly due to the complainant’s date of appointment as a consultant.  The respondent stated that the named comparator was first appointed as a consultant before the 30% salary cut which applied from 1 October 2012 and the complainant was appointed after this date and so the 30% salary cut applied to the complainant.

It is further asserted by the respondents that the average age of the complainants and comparators when taken on their date of first appointment as consultants did not differ in any significant way.  This was supported in evidence adduced by Professor Simon Wilson, Lecturer in Statistics.

The respondents submit that the difference in pay is down to date of appointment or date of recruitment and in this regard submits that the case is on all fours with The Horgan and Keegan teachers’ case in this regard.

In addition, in considering the grounds other than argument advanced by the respondent I note that both parties have adduced evidence that the 30% pay cut was introduced for all newly appointed consultants after the 1st of October 2012 and there is no dispute as to the fact that the complainant was appointed after this date.

The Commission was furnished with substantial documentation in respect of this decision to cut consultants salaries by 30% and also in respect of the subsequent communications Including the correspondence of 14 February 2014 which outlined that pre-October 2012 consultants were entitled to retain their previous salary even if they changed posts after 1 October 2012.   In any event it is clear from the evidence adduced that the complainant was paid less due to being appointed after the 1st of October 2012 as all new appointees after that date were subjected to the 30% salary cut.

Direct evidence was adduced from one of the comparators that she was paid at a higher rate than a colleague who was a year older than her simply because she had been appointed prior to the October 2012 date and her colleague, who was a year older, was appointed after that date.   The comparator gave evidence that she and a colleague with whom she was competing with for the post were ‘both interviewed on the same day, the same interview panel, the same job, the same responsibilities, we were both the same age - he was a year older than me - and yet I was on the pre-2012 contract and he was on the post-2012 contract’.

The respondents in response to the claim in the present case that the comparator was paid more than the complainantadded that the comparator was appointed prior to the 1 October 2012 date and thus had a different contract to the complainant.

The respondent in this regard submits that the comparator retained their entitlement to their original salary scale to which they were entitled by virtue of having an appointment date which predated the 1 October 2012 pay cut and also by virtue of having a different contract which gave them an entitlement to the higher salary scale.    It was submitted that the comparator was also entitled to retain this salary by virtue of correspondence dated 14th of February 2014 which clarified that even where a pre-2012 consultant moves post after 1 October 2012 they are still entitled to retain the entitlement to their original salary scale.  The respondent refers to this as a form of ‘red circling’ of the salary entitlements of pre-October 2012 consultants.

The term "red circling" does not appear in the legislation, but it is a phrase frequently used in Industrial relations. It has been accepted in the past as a defence justifying different rates of remuneration between men and women under equality legislation1. In Irish Crown Cork Co. v Desmond and others2 Lynch J commented "that the term 'red circling'.... can mean different things to different people" and went on to state that what must be considered in the context of section 2(3) of the Anti-Discrimination (Pay) Act, 1974 (which is now section 19(5) of the Employment Equality Acts, 1998) "is whether the difference in the rates of pay between the claimant and the defendants is or is not genuinely attributable to grounds other than sex.". Whilst these authorities refer to the ground of gender under the legislation which preceded the current employment equality legislation, I am satisfied that they apply equally to the additional discriminatory grounds provided for in that legislation.

The respondent advised the hearing that the concept of ‘red circling’ is well settled and has been accepted as justification for differences in treatment by the Court in NUI -v- Aherne and Hennings -v Mai, a case which dealt with age related pay bands for civil servants wherein the Court noted that if you had been on a higher rate you would not lose it due to the introduction of a new scheme.

In this regard I also note that It is common in industrial relations, whether in the private sector or public sector, that the principle of ‘what you have, you hold’ generally applies.  

In considering the defence advanced by the respondent, I note that both parties agree that the complainant and comparator were paid at differing rates following the introduction of a 30% pay cut for first time consultant appointed to posts after 1 October 2012.  In addition, I note that there is no disputing the fact that pre 2012 consultants retained these salary entitlements even in circumstances where they moved to a different post after 1 October 2012.    I note the respondent’s position that this amounts to a form of ‘red circling’ of the salaries of the pre 2012 consultants even when those consultants move posts after the 1st of October 2012.

Section 29(5) of the Act permits an employer to pay different rates of pay to different employees provided that it is done on grounds other than discriminatory grounds.

The respondent accepts that the complainant did not receive the same salary as the named comparator who is older in age. The respondent in defence of this claim relies on section 29 (5) of the Acts, which states that “nothing in this Part shall prevent an employer from paying, on grounds other than discriminatory grounds, different rates of remuneration to different employees”. 

It is common case that the reason for the difference in pay was due to a 30% pay cut announced by the Minister in 2012.   It is accepted by both parties that the reason for the pay differential between pre and post 2012 consultants is due to the fact that pre 2012 consultants were engaged on a different consultant contract and retained the salary entitlements of this contract.

The respondent in its evidence stated that the pay cut had nothing to do with age and made the point that a number of the comparators are in fact younger or very close in age to some of the complainants themselves.  This the respondent states is further support for its case that the pay differential is not related to age and does not amount to discrimination on grounds of age.

In light of all of the foregoing and having considered the evidence adduced, I am satisfied that the complainant was paid at the lower rate due to having been appointed as a consultant at a later date, by which time a 30% cut in salaries had been introduced.  In addition, I am satisfied that the comparator retained their entitlement to the pre-October 2012 salary due to their earlier date of appointment and also due to ‘red circling’.   Accordingly, I am satisfied that there are ‘grounds other than’ age for the difference in pay between the complainant and the comparator which render the rates of remuneration paid to the complainant and the comparator lawful in accordance with section 29(5) of the Employment Equality Acts, 1998-2015.

I am satisfied based on the totality of the evidence adduced that the complainants have failed to establish a prima facie case of Indirect discrimination on grounds of age and accordingly I am satisfied that the complainants were not indirectly discriminated against by the respondent on grounds of age in respect of this matter.

I am also satisfied based on the totality of the evidence adduced that the respondent has fulfilled the obligation placed on it to show that there are ‘grounds other than’ age for the difference in the respective rates of remuneration paid to the complainant and comparator which render the rates of remuneration paid to the complainant and the comparator lawful in accordance with section 29(5) of the Employment Equality Act, 1998-2015.