Complainant

Respondent

Parties

Dolores  O'Riordan

Health Service Executive

Representatives

Jamie Murphy, Independent Workers' Union

Paul Byrne, National Employee Relations

Act

Complaint Reference No.

Date of Receipt

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

CA-00058103-002

04/08/2023

On August 4, 2023, The IWU Union submitted an Industrial Relations Dispute and a Complaint of Discrimination on grounds of Gender on behalf of Ms. Dolores O’ Riordan, a Housekeeper at the Respondent employment. This is one of two cases submitted for hearing by a grouping under a 21-member class action on consent of the Parties.

As the Employer objected to an investigation of the dispute by the WRC, the matter could not be progressed. The Union was informed of this development on 18 September 2023. The matter has not progressed to the Labour Court.

The WRC hearing proceeded as planned on June 17, 2024, on a hybrid basis. The Respondent attended on the Remote Platform, in accordance with Section 31 of the Civil and Criminal Law (Miscellaneous Provisions) Act 2020, as amended. The Union and Ms Oriordan presented in person

Both Parties were represented and filed helpful submissions.

The Complainant took the oath to accompany her evidence to the hearing.

The case was conjoined with ADJ 47252, Ms Linda Heaney and Health Service Executive.

At the commencement of the hearing, I disclosed my own background as A Union Official within this employment and no objections were raised on my continuance in the case.

As part of my Investigation, I requested that the Respondent produce a copy of the Job Evaluation Report. I requested that the Complainant side produce a contract of employment and record of pay slips.

Both Parties acceded to the request and both parties received copies of the submitted documents.

The Complainant form carried the following text:

Following the implementation of Phase 4 of the Job Evaluation Scheme, I am being discriminated at work on the basis of gender.

The Union outlined that the Complainant had been discriminated against on grounds of her gender in the course of the implementation of Phase 4 of a National Job Evaluation Scheme, which commenced during 2017. The most recent date of discrimination was listed as 4 August 2023.

The Union clarified that that the claim did not arise from discriminatory provisions within a Collective Agreement and focussed instead on a high level of dissatisfaction which arose from seeking to resolve the matter through the internal grievance procedure, within the employment. The Union also clarified that they did not intend for this to be a claim for Equal Pay.

It was the Union case that the Complainant was employed as a Housekeeper within a large Hospital, in a predominantly female domain. Significant changes had occurred in the job profile, particularly post covid 19 pandemics.

 Her work comprised a wide variety of cleaning duties at the hospital alongside Porters and Mult task Attendants.

The essence of the case is that in the context of a recent phase 4 Job Evaluation Scheme,

 Ms O’ Riordan did not move up a “band “from Band 4

                                                                 To Band 3 (Porters)

Instead, the Grade of Housekeeper was not ear marked for an upward alignment to a higher band.

The Union has submitted that as a result of this disparity in banding, the complainant was discriminated against based on her gender.

The Union cited the Comparator as a Porter within a predominantly male domain in the Porter group.

The Union exhibited a non-exhaustive list of housekeeper duties and contended that Housekeepers and Porters are engaged in like work and the disparity in banding was keenly felt by Ms O’ Riordan as a discriminatory action directed at her gender.

The Union sought compensation in respect of the discrimination in addition to an order to

“Amend the error that has occurred through discrimination “.

The Union submitted a number of arguments in support of Ms O’Riordans claim.

The employees at CUH, where the complainant is based were not balloted on how the job evaluation would be conducted. No preparatory explanations on job evaluation occurred.

 No right of appeal followed.

There was no gender equality impact assessment to reflect the gendered nature of some of the work at the hospital.

No weighting was given to the change agent of Covid 19

The Union relied on C-624/19 of K and Or’s v Tesco at the CJEU on the right to equal pay.

Assessments were not universally conducted across hospitals and of the hospitals that were assessed, the Union contended that a localised sign off of self-assessment contributed to inaccuracy. This point was not developed or advanced at hearing.

The Union submitted that discrimination had continued as a Continuum since the completion of the Phase 4 evaluation process in May 2021.

Evidence of the Complainant

Ms O Riordan commenced work as a Housekeeper on 22 August 2004 and was assigned to night work across the Emergency Dept and wards on a 30-hour week.

She was not directly involved as a Participant in the Job evaluation scheme.

Ms Oriordan told the hearing that her job had dramatically changed at the hospital and her role had been expanded from housekeeping to contaminated waste management, fumigation to a more enhanced public facing role of hospitality through serving teas and snacks.

The Complainant described it as stressful work.

The Complainant was clear that she had not been an active participant in the job evaluation on her role as Housekeeper, but she recalled that everyone was annoyed by the outcome. She confirmed that the Union of which she was then a member had informed the group “that they did not have enough points “

The Complainant was disappointed that her grade of Housekeeper remained the same, while Catering received a Band 3. She found it degrading as she maintained that her role required her to manage contaminated waste and prepare it for seal and despatch before Porters collect it.

Ms O Riordan confirmed that she had never seen a document which described points or points scored in the context of a job evaluation for Housekeepers.

She recalled that her role was similar to portering. she confirmed that she recalled deputising for a Theatre Porter many years ago.

She maintained that her position was worthy of a higher band due to her proximity to patients in the clinical setting.

During cross examination, by Mr Byrne, she stated that she was unsure of just where the analogy of the clinical waste had come from.

During clarifications, Ms O’ Riordan explained that she believes that she has been discriminated against by the Respondent as she wanted to be seen and recognised for the work that she was doing which is of equal value to the Porters contribution.

She explained that the role of Housekeeper was more “hands on “

During concluding remarks, the Union concluded that this was a straightforward claim of a Housekeeper who had not received a correct band through job evaluation exercise.

The Union accepted that the Complainant was a member of a different Union SIPTU during the course of these events.

The Union accepted that they had not furnished the name of a Porter as comparator but argufied that majority of Portes were male and they had received an upward alignment to Band 3. The Respondent had erred in not having upgraded the Housekeeper position to Band 3 and Ms Oriordan was deserving of compensation.

The Union was asked for any remarks on

National University of Ireland Cork v Alan Ahern and Or’s, 2005 at the Supreme Court, but did not avail of the opportunity.

Tesco case.

The Union did not furnish a Salary scale for porters.

The Union confirmed that there was no written outcome on the verdict of “no change “for the Housekeeper group. They submitted that they had not advanced their dissatisfaction either with the respondent of the union.

I explained that I had some difficulty with the frailties within the Porter job description relied on, due to lack of logo, validation, name or lack of evidence in support. The document was not paginated.

Contract of Employment (Permanency) unsigned copy.

Title: Housekeeping Attendant

Job Description: Main duties set out in your description

Grievance Procedure: set out at section 16

Agreement at section 25 “Your terms and conditions may be revised in accordance with agreements reached between the union representing your grade and the HSE South. “

The Respondent operates the Irish Public Health Service and has disputed the claim.

It was the Respondent case that a process which involved job evaluation was agreed as part of the Public Service Agreement in 2016. Chairmans note (relevant management and unions were to meet to conclude arrangements on the conduct and scope of the job evaluation exercises within Health)

This process involved the HSE and SIPTU, the Union and has followed an extended lag in accessing job evaluations since 2005.

The Job Evaluation process unfolded by agreement on a phased basis.

The Respondent exhibited a Circular letter dated 12 April 2017 from the then HSE Director of Human Resources which gave life to HR Circular 11/2017 on

Reestablishment of Job Evaluation Scheme (Support Staff Grades)

1         Evaluation process CSSD, Endoscopy, Laboratory and Theatre clinical areas to run to June 30, 2017.

2         Health Care Assistants and MUH Task Attendants to run July 1 to 30 November 2017

3         Home Helps to run January 2018 to May 30, 2018

4         Phase 4 (circumstances of this case) Household Attendants, Catering, Portering and remaining grades.

An examination of a cross section of staff across 25 agreed locations.  Payment from December 2017 was flagged as the conclusion of phase 2.

A National Monitoring Group was made up of HSE and SIPTU and an action plan agreed in July 2017.

The process involved a localised selection of postholders to complete a Job Questionnaire by staff representatives in the various divisions identified.

Site visits occurred. A joint evaluation team engaged with the applicants on the precise nature of the work, the scope and level of demands and responsibilities attached to the roles.

The average score per role evaluated, across all locations determined the final outcome in all phases of the process.

The Matrix of Marking under 6 headings

1 knowledge Skills and Experience

2 Problem solving

3         Decision Making

4         Operational Responsibility

5. Communication 

 6. working conditions

The Respondent submitted that the entire process was subject of ongoing review and scrutiny. Third Party intervention at Conciliation and the Labour Court LCR 22066

HR Circular 005/2020 on revised bands followed on 25 February 2020. This signalled that September 1, 2019, was the effective date of operation.

The process is now complete.

24,000 uplifts occurred. There 6 -7 grades of staff that did receive an uplift.

The Respondent outlined that of 24,200 wte assessed across all phases of job evaluation that the target audience stood at

Male 29%

Female 71%

They added that of 21, 255 wte uplifted i.e. successfully reclassified in grade:

Male 30%

Female 70%

Of 2,945 wte which were not selected for uplift

Male 25% (870)

Female 75% (2670)

The Respondent argued that the process of job evaluation was not performance related but rather a review of the nature of the role, competencies required, size and scope of the role and the demands placed on the post holder.

The Respondent denied that the outcome was influenced by gender and confirmed that CUH, where both complainants were based was a Sample site within the process.

When asked the clarify whether a localised mechanism of appeal existed? The Respondent confirmed that there was no provision for an appeal within the 2017-2020 process or indeed the 2005 process.

The Respondent did not lead evidence in the case and relied on oral and written submissions at hearing.

In conclusion, the Respondent once more denied discrimination and submitted that the Respondent had been consistent in their approach to the job evaluation exercise for all grades involved.

All participants were treated equally, and the outcome was not determined on gender.

There was no appeal process for any grade.

There had been a late opportunity to align loose grades  

to a code error and a resultant uplift, but the housekeeper role was not classified within that process.

There was no job description available for the housekeeper role.

The Respondent has presided over a highly advantageous uplift process for the majority of the interested 23 categories. The complainant’s grade was not within this grouping, but her exclusion was not linked to gender but to a lower scoring.

The disruptions surrounding Covid 19 were accommodated within the process.

Evaluators Report Phase 4 May 2022

1.       Phase 4 was a review and evaluation of the work undertaken by all support staff not included in phase 1-3.

2.       Additional scope to revisit the role of Multitask Attendant and reevaluate from phase 2 due to acknowledged locational differentials by the National Monitoring Group.

3.       Job Evaluation Team comprised of 4

External Consultant for SIPTU

Three Members of Employee Relations

Quorum of two evaluators per review

Methodology

Questionnaire, signed off by direct line manager

Site Visits

Interviews

Evaluation team would score the job signed by two evaluators, one from each side.

All role evaluations, scores and individual evaluations presented to the National Monitoring Group in May 2022.

Household, Janitor, Domestic scored 185     and remained band 4.

Catering Assistant / Ward Catering      scored 216 and banded 3

Porter                                             scored 203                 and banded 3

There were some redacted records on the unique roles and incorrect job title which scored within a range of 1-3.

Domestic Attendant with a multitask function and patient movement in a multi-unit facility scored band 3 at 217 points.

Band 1 +356

Band 2 280 -355

Band 3 201 -279

Band 4 46 -200

The Evaluators Report received from the Respondent was dated May 2022 and cited finalisation of evaluations as May 2022 and all scores, roles evaluated, evaluation sheets were presented in a Master Folder presented in hard copy to the National Monitoring Group in May 2022. The Respondent confirmed this at hearing.

The exceptions made were appended in redacted form and seemed to reflect a differential in locations and historical/traditional post recognition which fell outside traditional banding.

There was no downgrading in roles recorded, just an upward alignment or a “no change “.

This document is a desk top summary and did not contain any of the foundation documentation which resulted in the scoring of housekeepers and porters.

I have been requested to arrive at a decision in this case where the complainant as one of a larger class action group comprised of males and females has submitted a complaint that as a result of the implementation of Phase 4 job evaluation scheme, that she has been discriminated on grounds of gender in relation to the implementation of phase 4 of a national job evaluation scheme. Section 6(2)(a) the gender ground.

In arriving at my decision in the case, I have read and considered the parties oral and written submissions in addition to the evidence adduced by the Complainant at hearing.

There is an important background and context to this case which I believe is important to reflect back to the parties.

The Complainant has submitted a complaint of discrimination on grounds of gender against her employer arising from the outcome of a Job Evaluation Scheme, which arose when she member of the Participant Union, SIPTU and not the IWU. It is abundantly clear to me that Ms O’Riordan carries a deep sense of exclusion by her employer on the outcome of her grading in November 2021. She equally carries a high level of residual disappointment against the Union involved at that time.

 The Respondents has recorded a strident declaration that discrimination has not occurred to Ms O’ Riordan. They have anchored this response in emphasising the dearth in the opportunity to participate in a job evaluation scheme from 2006 to 2017 and were visibly proud of the benefits that flowed from the entire Job Evaluation process. They utilised the mechanisms involved in the earlier job evaluations from 2006. The Employer detailed a protracted process, initiated by the Chairmans notes to a Public Agreement and enabled by repeated engagement with the WRC and Labour Court in LCR 22066 to conclude this process. The implementation date for Phase 4, relevant to the Complainant was 1 January 2021.

  It is worthy of reflection that LCR 22066 records a mobilisation of the Labour Court on 9 occasions during 2019 on this issue, which captured the Job Evaluation process as an agreed Collective Agreement and what remained was an action plan on implementation.

The Complainant, Ms O’ Riordan has been unable to secure an investigation under the Industrial Relations Act, 1969 and this matter is now parked.

Instead, she has advanced this complaint of discrimination, which came second in time on her complaint form of August 4, 2023. She has cited the most recent date of Discrimination as the 4 August 2023.

Statutory Time Limits: The limitation Period

My Jurisdiction to investigate this complaint is derived from Section 77 of the Employment Equality Act 1998, as amended.

Section 77(5) introduces a statutory time limit on the obligation placed on the complainant to file her complaint within 6 months of the occurrence of the incidents of alleged Discrimination.

5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

The WRC and Labour Court on appeal, have reflected on this issue and in assessing claims of discrimination looks for an instance of alleged Discrimination within that cognisable period of through the six-month extension by reasonable cause.

HSE and Anna Maria Desmond EDA 2429

 The complaint was lodged with the WRC on the 9th of June 2022 so the cognisable period for the purpose of the Act is 10th December 2021 to 9th June 2022.

Pamela Brennan and Board of Management of Scoil Mhuire agus Iosaf Junior School [ 2020] 31 ELR 21

The relevant date to be considered for a complaint of discrimination is the date upon which the discrimination occurred.

In this case, the complainant has not sought an investigation within Section 77(5) but has rather sought an investigation in accordance with Section 77 (6)(A) of the Act, that the action of alleged discrimination formed a continuum.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operates over a period, throughout the period,

Cork County VEC v. Hurley EDA1124. Is the Authority from the Labour Court here.

In Louth VEC v Equality Tribunal and Pearse Brannigan, JR, [2009] IEHC 370, Mc Govern J permitted an inclusion of a series of actions on the same ground.

I can accept that Section 77(6)(a) can apply in this case as the action complained of constituted a chain of events which followed the implementation of Phase 4 of the Job Evaluation Scheme from January 2021 as announced on the amended Circular of February 10, 2023.

I will proceed on that basis and proceed to examine the facts as presented.

The Law:

The relevant EU Directive in this case is.

Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the Implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation (Recast) (Consolidated)

Where?

Equal pay is provided in.

Article 4 Prohibition of discrimination

For the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated.

In particular, where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.

Discrimination is prohibited in.

Article 14 Prohibition of discrimination

1. There shall be no direct or indirect discrimination on grounds of sex in the public or private sectors, including public bodies, in relation to:

(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion.

(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience.

(c) employment and working conditions, including dismissals, as well as pay as provided for in Article 141 of the Treaty [now Article 157 TFEU].

(d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.

The Union is reliant on CJEU C-624/19 as K and Ors v Tesco Stores ltd. This is a case of current and former Shop workers who contended and continue to contend that their work is of equal value to Distribution Centre Workers, who are mostly male. The CJEU enable the power for comparison, but these cases continue to travel through the UK Employment Tribunals at this time. Employment Equality Law, 2nd edition, Bolger, Kimber and Bruton at Chapter 11 reflects that   the

” Single source principle “

does not apply in cases where complainants and their comparators co-exist in the same employment.

North Cumbria Acute Hospitals NHS Trust v Potter [2009] I.R.L.R. 176.

The CJEU ruled that Article 157 may be relied on before national courts in claims about work of equal value.

Article 157 TFEU Treaty on the Functioning of the EU

1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

2. For the purpose of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.

Equal pay without discrimination based on sex means:

(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement.

(b) that pay for work at time rates shall be the same for the same job.

Equal Treatment:

The Union has clarified that this a claim for equal treatment and not equal pay, (where a different time limit of 6 years applies)

The Complainant has submitted that she has been disadvantaged by the Respondent in relation to her grading which remained unchanged following the Job Evaluation Scheme, Phase 4.

The Respondent has denied this and in their outline of the evolution of the relaunched job evaluation scheme from 2005/6, they recounted the protracted process which occurred over some very eventful years in the Health Service 2017-2022, encompassing a national pandemic and cyber-attack.

LCR 2206 captured this process as a Collective Agreement between SIPTU and HSE.

 My attention is drawn to EDA 068, Dept of Financeand 7 named Complainants, on appeal.

“The substance of the complaint is that a Collective Agreement which affects the pay of the Complainants, namely the Programme for Prosperity and Fairness , encompassing the report of the Benchmarking body contains discriminatory provisions contrary to section 9 of the Act and should be declared null and void pursuant to Section 87 of the Act “

In that case, the Union had nominated a male comparator whose pay was determined by that agreement.

The Equality Tribunal had determined that the Complainants had not validly referred a collective Agreement, therefore no jurisdiction.

The Labour Court, on appeal, in addressing Social Partnership Agreements, determined that these Agreements are made “between a number of social partners including Government, both in its constitutional capacity and as an employer. They deal with a range of social and economic issues including pay. In so far as these agreements have parties who are not employers and deal with issues other than pay and conditions of employment, they could not be classified as collective agreements properly so called “

The Court held that “an instrument capable of being investigated under Section 86, (Collective Agreements) had not been referred to the Director “

Six years later in Diageo and Byrne and OHanlon DEC E2012 -048, dismissed a complaint regarding transitionary conditions following a redundancy were discriminatory on age grounds.

I have reflected on all that I have heard in this case and it is difficult not to see this case as a collateral attack on Phase 4 of the Job Evaluation Scheme, that is a Collective Agreement between the HSE and SIPTU and not IWU, who does not as yet have union recognition in this employment.

Section 85(A) places the burden of proof on the complainant to raise facts of sufficient significance that Discrimination on grounds of gender has occurred. The Recast Directive requires that I look under the bonnet in this case to assess where Equal Treatment has been denied to the Complainant.

Valpeters v Melbury Developments ltd [2010] ELR 64

I read with some interest the Labour Court Decision in

Irish Aviation Authority v Irish Municipal, Public and Civil Trade Union, DEP 993

“In this case, the difference in remuneration between the claimants and the comparators derives from the grading structure operated by the respondent. Therefore, a case of direct discrimination does not arise.”

The findings:

“The figures set out above show that the ATCA grade has consistently been comprised of more men than women. In the Court’s view, however, the degree of gender imbalance has not been of such significance as to render the grade predominately male.

The decision of the Court of Justice in Enderby indicates that an inference of indirect discrimination should only be drawn in circumstances where the claimant grade is predominantly of one sex and the comparator grade is predominantly of the other sex. In the present case, the Court finds as a matter of fact that the comparator grade of Air Traffic Control Assistant was not predominantly male. Having reached that conclusion, it is unnecessary for the Court to consider if the claimant grade of Data Assistant is predominantly female.

The Court has, therefore, concluded that the gender imbalance within the grading structure is not sufficient to establish a prima-facie case of indirect discrimination. It is only if such a prima-facie case is made out that the respondent is required to show objectively justifiable grounds for the differences in pay. In these circumstances, the claimants’ case must fail.

In 48 Named Complainants (Represented by Irish Nurses and Midwifes Organisation) and the Health Service Executive,

The Labour Court found that the complainants were 100% female but the comparator “at the relevant time “were a ratio of 53/47 female male.

Discrimination on grounds of gender is binary, a female is to be compared with a male and vice versa.

In all that has been placed before me, I have found an insufficient compilation of information in this Unitary employer for me to identify facts of sufficient significance for me to infer Discrimination on grounds of gender, so as to pass the burden of proof before the Respondent to rebut.

Instead, I have concluded that Ms O’ Riordan is a disappointed person that a job evaluation did not go her way.

I have also found that the Banded grouping of Household Janitor Domestic to remain the same stood in stark contrast to Catering Assistant / Ward Catering to Band 3 raised a certain ambiguity. In addition the issue of the House keeper grouping being subdivided to some candidates securing a Multi Task Attendant Band 2 could understandably have been met with some confusion , after all , Ms Heaney went to job evaluation for the entire grade of Housekeeper ( 248 )and yet this grouping was subdivided eventually in some band 4 and others Band 2  .I also found some lack of transparency in the grade of Catering Assistant 4123 as based on the Complainants own evidence , this is the role she held . The Complainants contractual title is Housekeeping Assistant and I wondered if the difficulty has arisen in what the Respondent confirmed were regional disparities on job titles as rectified in code 4123.

I fully accept that Ms O Riordan remains baffled by her exclusion from Band 3  on grounds of the expansion in her role at the Hospital .

The absence of an appeal mechanism may have contributed to this .

 I appreciate that these are Industrial Relations Issues.

Reluctantly, I must conclude that the complaint before me is unfinished business with the Union who travelled the monumental journey 2017 to 2022 with the Respondent.

The Union, IWU has not advanced a composite set of facts on a comparator. I have grave difficulty in being asked to review an incomplete job description for an unnamed Porter. I also have a difficulty in the absence of a Pay scale for Porters or a national ratio of male female in the role in this unitary employer.

At the conclusion of my investigation, I have not identified facts that for me, infer Discrimination on grounds of Gender. The Complainant has not demonstrated that she has been treated less favourably due to her gender.

The claim has not been advanced as a claim for Equal Pay or as a Collective Agreement.

 Note LCR 22066.

The claim for Discrimination on grounds of gender cannot succeed.

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.

At the conclusion of my investigation, I have not identified facts that for me, infer Discrimination on grounds of Gender.

The claim has not been advanced as a claim for Equal Pay or as a Collective Agreement. Note LCR 22066.

The claim for Discrimination on grounds of gender cannot succeed.

Discrimination on grounds of Gender, Collective Agreement.