Complainant

Respondent

Parties

Donna  Creaven

Department Of Justice Irish Prison Service

Complainant

Respondent

Anonymised Parties

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Representatives

Rosemary Mallon BL instructed by McInnes Dunne Murphy LLP

MP Guinness BL instructed by Chief State Solicitor's Office

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-00056101-001

17/04/2023

The Complainant is employed as Director of ICT Governance and Corporate Services with the Respondent. She is alleging that the Respondent discriminated against her on the grounds of age and gender because she is paid less than her chosen comparator, Fergal Black, the Director of Care and Rehabilitation, even though she does work of equal value.

The Complainant was appointed to the position of Director of Corporate Services by the Respondent with effect from 17 September 2019. The Respondent is headed by the Director General and supported by five other directors. The five directors are as follows: • Director of Operations; • Director of Care and Rehabilitation (i.e. the Complainant’s comparator, Mr Black); • Director of Finances and Estates; • Director of Corporate Services (i.e. the Complainant’s role); and • Director of Human Resources.

The Complainant is remunerated in line with the Civil Service Principal Officer Higher Pay Scale, plus a director’s allowance. By contrast, the Director of Care and Rehabilitation is remunerated on a bespoke rate of pay outside of the normal civil service grading structure. It is unclear how this bespoke rate was determined. It is the Complainant’s understanding that the difference between her remuneration and that of her comparator’s is in and around €36,000 per annum. It is the Complainant’s submission, that her and her comparator’s roles are like-work and accordingly should be remunerated the same.

In October 1990, the Respondent established a new position, namely the Director of Medical Services, under a temporary contract arrangement. X was subsequently engaged under a fixed-term contract, initially spanning a two-year period. In October 1992, discussions took place in relation to the appointment of a Director of Medical Services on a permanent basis and correspondence from the Respondent to the Department of Finance sought sanction for the approval of the holding of an open competition for the position. While the Respondent informed the Department that the pay for a consultant psychiatrist around the middle of 1990, when X was initially recruited, was IEP£38,000, the letter highlighted that the basic salary had increased to between IEP£53,500 and IEP£56,160 plus an additional IEP£7,000 for on-call liability following a review body recommendation, effective date 1 June 1991.

The Respondent stated that as a result of this review, they wanted to increase the proposed salary for the permanent position of Director of Medical Services to ensure that the successful candidate would be incentivised to stay in the role. Following correspondence with the Department of Finance, it was agreed to pay X IEP£44,800 with effect from 1 January 1993 on his appointment to the permanent role. X’s pay was subsequently reviewed again, and he was paid IEP£50,049 from 1 May 1995 and IEP£51,050 from 1 June 1995.

In July 2007, the Irish Prison Service headquarters decentralised from Clondalkin to Longford. This had been announced previously in April 2005. X was not happy to move to Longford and was facilitated with a transfer elsewhere in the public sector. As a result of this, a competition had to be held to replace his role as Director of Healthcare.

One of the big issues arising out of the decentralisation to Longford was the attrition of staff. Therefore, there was a significant loss of experience in relation to the Irish Prison Service which resulted in significant problems. There was already a trend that there was less interest in competitions for roles in Longford because of the decentralisation.

In order to attract a wide field of candidates, it was deemed essential that the Director of Healthcare would be maintained at the level of salary held by X. While a qualified medical professional was preferred because of the nature of the role, the advertisement provided that, in the alternative, the candidate had a minimum of seven years managerial experience in a healthcare/health services or related field. The comparator Fergal Black applied for and was successful in the competition having the requisite experience. Mr Black replaced X as Director of Healthcare and fulfilled the role and responsibilities of X, notwithstanding that he was not a clinician. The role encompassed three strands; namely healthcare, psychology and prisoner services. Ultimately the Directorship of Regimes amalgamated with healthcare to become the Director of Care and Rehabilitation.

On 2 July 2018, Y began his employment as Clinical Lead relating to healthcare. At this point, Mr Black was divested from all clinical decisions on the healthcare side. Before that, he was responsible for all of the clinical decisions made on the healthcare side. Therefore, at this point, July 2018, Mr Black’s role became more equivalent to that of the other directors, including the Complainant’s role. His role effectively changed as he was divested of his clinical responsibilities after the appointment of Y. Because of Y’s appointment Mr Black was able to take a more management and governance role. The responsibility for healthcare sat firmly with Mr Black prior to Y’s appointment. As a result, Mr Black’s role was red circled by the Respondent in terms of his terms and conditions of employment and when he retires, the role will be advertised at the same rate as all of the other Directors of the Respondent organisation.

The Law

Discrimination for the purposes of this Act.

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

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

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

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

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

Like work.

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

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

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

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

(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 a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).

Entitlement to equal remuneration.

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

(2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.

(3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B 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) (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.

Burden of proof.

85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission undersection 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.

Findings:

It has been the well-established practice of the Commission and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he/she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the Court stated in respect of the provision in S 85A that; “This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”            

So, it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

The Complainant states that she has been and continues to be discriminated against on the grounds of her age and gender because he is paid a lower salary than her comparator, the Director of Care and Rehabilitation, Mr Fergal Black, who is older, although they both perform work of equal value. Given that the Respondent accepted that the Complainant performs work of equal value and is paid a lower salary than Mr Black who is older, I find that the Complainant has established a prima facie case of discrimination, which the Respondent must now rebut.

In terms of the Respondent's evidence, the former Director General provided a detailed account of the historical context surrounding the package of the former Director of Medical Services, as outlined in the summary above. The Complainant did not dispute that this role both equated to and preceded the role that her comparator was recruited for. Of particular significance, in my view, was the evidence presented regarding the 1991 review body recommendation, which led to a substantial increase in the basic salary for consultant psychiatrists to a range between IEP£53,500 and IEP£56,160, with an additional IEP£7,000 allocated for on-call duties. I recognise that this recommendation understandably prompted concerns within the Respondent that the then Director of Medical Services, X, who was a consultant psychiatrist might consider leaving their employment due to the significant disparity between his then salary of IEP£38,000 and that recommended by the review body.

To address their concerns in this regard, the Respondent, following negotiations with the Department of Finance, implemented a series of salary adjustments. Notably, X received an initial salary increase from IEP£38,438 to IEP£44,800, effective from 1 January 1993, along with subsequent additional increments on 1 May 1995 to IEP£50,049 and on 1 June 1995 to IEP£51,050.

Despite successfully retaining X in their employment thereafter until 2007, the Respondent then encountered a new staffing challenge when X declined to relocate to the new headquarters in Longford, following a government decision to decentralise operations there. Recognising the potential difficulty in attracting a candidate of comparable calibre to replace X, particularly given the relocation to Longford, Mr. Purcell, in his capacity as Director General, made the decision to maintain the new Director of Healthcare’s salary at the level previously earned by X. Mr. Purcell justified this decision by highlighting the extensive turnover within the Respondent’s headquarters, with 85% of the staff having to be replaced due to a refusal to move to Longford. He also emphasized that the relocation to Longford had already resulted in decreased interest in job competitions and asserted that this trend was compounded by the broader context of decentralisation. It is noteworthy that the Complainant did not contest the assertion of diminished interest in roles located in Longford and I accept the justification presented by Mr Purcell to retain the salary of the new Director of Healthcare at the level of his predecessor, especially given the historical context.

In addition to preserving the salary at the level previously earned by X, the Respondent also modified the job requirements of the role, which involved removing the necessity for applicants to possess a medical qualification. The rationale behind this change, which I accept, was to further broaden the pool of potential candidates, an additional measure, on top of the decision to preserve the salary of X’s successor, taken in response to the expected reduced interest in the position because it would now be based in Longford.

I also noted that the role currently held by Mr. Black, namely Director of Care and Rehabilitation, differs from the Director of Healthcare position that he was recruited for because he was divested of responsibility for any clinical decisions in 2018 as well as having additional responsibilities allocated to him. As the decision to divest him of clinical decision making was made eleven years after Mr Black’s recruitment, it could not reasonably have been foreseen by the Respondent at the time. Despite the evolution and change in Mr. Black's responsibilities, I accept that the Respondent is bound by the contractual terms agreed upon at the outset of his employment in 2007, notwithstanding the change in his role. As highlighted by Ms. Guinness BL in her written submissions, any attempt to amend Mr. Black's terms and conditions of employment to align with those of the Complainant would be legally impermissible.

Overall, I find that the Complainant has successfully established a prima facie case of discrimination that meets the requirements of s.85A of the Act in respect of this complaint. However, the Respondent has successfully rebutted this presumption by demonstrating that the decision to remunerate the Director of Care and Rehabilitation at a higher level than the Complainant was objectively justified and that the difference in compensation between the two positions is attributable to factors other than age.

I find that the Complainant was not discriminated against by the Respondent for the reasons set out above.