CORRECTION ORDER

ISSUED PURSUANT TO SECTION 88 OF THE EMPLOYMENT EQUALITY ACT 1998

This Order corrects the original Decision ADJ 45309 issued on 24/01/24 and should be read in conjunction with that Decision.

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00045309

Parties:

	Complainant	Respondent
Parties	Trevor Jordan	Irish Prison Service

	Complainant	Respondent
Anonymised Parties	{text}	{text}

Representatives

MP Guinness BL instructed by Karen MacNamara Chief State Solicitor's Office

Complaint(s):

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-00056009-001	11/04/2023

Date of Adjudication Hearing: 19/09/2023

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The Complainant as well as two witnesses on behalf of the Respondent, namely the former Director General Brian Purcell as well as the Complainant’s chosen comparator Fergal Black, gave evidence on oath/affirmation and the opportunity for cross-examination was afforded to the parties. As the case was virtually identical to that made by the Complainant’s colleague Don Culliton, ADJ 41133, both complaints were heard during the same hearing following the agreement of all parties.

Background:

The Complainant was employed as Director of Human Resources with the Respondent. He is alleging that the Respondent discriminated against him on the grounds of age because he was paid less than a comparator, Fergal Black, the Director of Care and Rehabilitation, even though he did work of equal value.

Summary of Complainant’s Case:

The Complainant stated that both he and his comparator were employed by the Department of

Justice and assigned to work for the Respondent. The Respondent is headed at functional level by a

Director General at Deputy Secretary level within the Civil Service grading structure. The second tier

of management in the Respondent consists of five Directors. The five Directors have functional

responsibility as follows:

· Custody, Security and Operations

· Care and Rehabilitation

· Human Resources

· Finance and Estates

· Corporate Services, Governance and IT

Both the Complainant and comparator were employed in the grade of Director, the Complainant

being Director of Human Resources and the comparator being Director of Care and

Rehabilitation. They both reported to the Director General. They also served on the Senior

Leadership Team of the Respondent and had equal status on that team. It was submitted by the

Complainant that both he and the comparator were interchangeable with each other.

The comparator’s post was sanctioned and advertised in 2007. The previous incumbent was a

qualified medical doctor and psychiatrist, an essential requirement for the post prior to 2007. He

was responsible for both the strategic and clinical leadership of the Healthcare Directorate. The

essential requirements of the post were amended in 2007 and the advertisement

stated, as an essential requirement, that the individual applicant hold “A third level/professional

qualification in the healthcare field and/or a minimum of 7 years managerial experience in a

healthcare/health services or related field.” This mandatory 7 year managerial experience

requirement was a new requirement introduced at that time. The Complainant asserted that his

comparator does not hold a professional health care qualification and that he therefore qualified to

compete on the basis of the mandatory 7 year requirement. He took up responsibility for the

strategic leadership of the Healthcare Directorate, now the Care and Rehabilitation Directorate. The

post was sanctioned in 2007 with a bespoke higher pay rate.

The Complainant’s post was sanctioned at a lower pay rate and did not require a minimum of 7 years managerial experience in the relevant field. None of the other Director posts with the Respondent, either before or after, had this mandatory 7 year criterion as an essential requirement.

In terms of pay, the Complainant received substantially less than his comparator, amounting to

approximately €32,000 per annum. The Complainant stated that he and the three other Director

posts were paid within the civil service grading structure at Director level. The Directors’ pay

consists of the Principal Officer (Higher) pay scale plus a Directors’ allowance. The Complainant

stated that his comparator is on an individual rate of pay outside of the normal civil service

grading structure. He asserted that it was unclear how this individual rate was sanctioned and as

such the setting of this pay rate lacks transparency.

Summary of Respondent’s Case:

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.

Findings and Conclusions:

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 whichsection 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 he has been and continues to be discriminated against on the grounds of his age because he is paid a lower salary than his 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 his 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 the Complainant’s assertion that the job advertisement for the position of Director of Healthcare, which succeeded X's role as Director of Medical Services, was discriminatory on the age grounds because it required 7 years of managerial experience. However, I reject this assertion, as the job advertisement explicitly specified that "A third level/professional qualification in the healthcare field and/or a minimum of 7 years managerial experience in a healthcare/health services or related field" was required. Therefore, it is evident that no mandatory minimum experience was stipulated, if an applicant possessed a third level/professional qualification in the healthcare field.

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.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

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

Dated: 24th of January 2024