EDA256

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00041133 (CA-00052331-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 18 December 2024.

The following is the Determination of the Court:

DETERMINATION:

1. Background to the Appeal

This is Mr Don Culliton’s (‘the Complainant’) appeal from a decision of an Adjudication Officer (ADJ-00041133, dated 24 January 2024) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received in the Court on 6 February 2024. The Court heard the appeal in Dublin on 18 December 2024, during the course of which the Complainant gave evidence on affirmation. The following witnesses were also called: Mr Trevor Jordan (by the Complainant); and – by the Irish Prison Service (‘the Respondent’) – Mr Brian Purcell and Mr Fergal Black.

2. The Factual Matrix

The facts that are relevant to the within appeal are, in the main, uncontested, and can be succinctly recited as follows. The Complainant is one of five Directors that make up the second tier of the Respondent’s management structure, reporting directly to the Director General. He currently occupies the role of Director of Custody, Security and Operations. He was previously the Respondent’s Director of Human Resources. The salary of those employed at Director level by the Respondent is that which applies for the time being to a Principal Officer (Higher Level) in the Civil Service, in addition to which they are paid a Director’s allowance.

At all material times, Mr Fergal Black – the named comparator in these proceedings – held the position of Director of Care and Rehabilitation. It is common case, that the Complainant and Mr Black performed work of equal value during the cognisable period. However, as of the date of the complaint (see below) there was a considerable disparity in their respective remuneration packages: it is common case that on that date that Mr Black’s total annual salary was €156,437 (non-PPC) and the Complainant’s was €131,644 (PPC). Having regard to Circular No 6 of 1995, Mr Black’s non-PPC rate equated to a PPC rate of €164,691 meaning that the difference in pay between the Complainant and his comparator, in real terms, was approximately €33,000.00 per annum.

Mr Black successfully competed for his position with the Respondent in 2007. At that time the role was titled as Director of Healthcare. The role had become vacant in or around the time that the Respondent’s head office was being relocated to Longford as part of the then-Government’s decentralisation programme. The position had previously been held (since 1990) by Dr Enda Dooley, a registered medical practitioner. Dr Dooley had opted not to relocate from Dublin to Longford and was redeployed elsewhere within the public sector.

The position of Director of Healthcare in the Irish Prison Service was advertised in mid-November 2007 with a closing date of 6 December 2007. The stated salary was €142,892, being an amount well above that which was payable at Principal Officer (Higher Level) in 2007. The essential requirements listed in the advertisement included the following:

“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.”

At the time of application, Mr Black was seconded from the Health Service Executive to the Department of Justice. Mr Black commenced in the role of Director of Healthcare with the Respondent in June 2008 having full responsibility for all medical and clinical services provided throughout the Prison Service estate. His role evolved over time. For example, in 2012 he was given additional responsibilities including for prisoner welfare. In July 2018, a new role of Executive Clinical Lead was created within the Healthcare Directorate of the Prison Service in order to enhance the internal structure of the Directorate. A registered clinician (Dr Devlin) was appointed to the position. From that point in time onwards, the Head of Nursing and the medical doctors working with the service reported directly to the Executive Clinical Lead, who in turn reported directly to Mr Black. The Executive Clinical Lead assumed day-to-day responsibility for clinical decisions meaning that Mr Black had less day-to-day involvement in healthcare matters and was freed up to spend more time on strategy and oversight issues. There were no changes to Mr Black’s terms and conditions, including his salary, following the appointment of the of Executive Clinical Lead in 2018. Mr Black retired from the Respondent in 2023.

The Complainant is a qualified nurse by profession and he has gone on to have a distinguished career in public service management. He successfully competed for the role of Director of Human Resources with the Respondent in late 2017. At that time, the salary scale applicable to the position commenced at €99,645 and incrementally increased up to €119,514.

3. The Complaint

The Complainant alleges that he has been discriminated against on grounds of age by the Respondent. He presented his initiating complaint to the Workplace Relations Commission on 22 August 2022. It follows that the period comprehended by the complaint is 23 February 2022 to 22 August 2022. As of the date of the complaint, the Complainant was aged fifty-three and his named comparator was aged fifty-eight.

The originating complaint submitted by the Complainant to the Workplace Relations Commission contains a long and detailed narrative that concluded with the following section which the Complainant entitled ‘Summary’:

“It is submitted that:

• The Claimant is engaged in like work/work of equal value when compared to his named comparator as confirmed in the Grant Thornton report.
• There is a significant difference in pay amounting to approximately €32,000 per annum.
• There is no objective reason for the difference in pay.
• The advertisement for the Comparator’s post was discriminatory on the grounds of age as it excluded younger [applicants] and this criterion was a determining factor in setting the individual pay rate for the Comparator which has resulted in the ongoing less favourable treatment.
• The Claimant is 5 years younger than the named Comparator and 80% of Directors were younger over the relevant period.
• The pay determination mechanism utilised to set the Comparator’s pay was not transparent.

It is submitted that these facts are sufficient to raise a presumption of discrimination and that the presumption is within the range of inferences which can be reasonably drawn from those facts. Therefore, it is submitted that the burden of proving compliance with the [principle] of equal treatment must shift to the Respondent’.

4. Summary of the Respondent’s Position in Reply

The Respondent submits that there were objective reasons for the salary level that attached to the position of Director of Healthcare which became vacant in 2007 and for which Mr Black successfully applied and to which he was subsequently appointed. The Respondent further submits that the eligibility criteria specified in the advertisement for that position were not discriminatory on the age, or any other, ground and were objectively justified. Finally, it is also submitted on the Respondent’s behalf that Mr Black’s terms and conditions, including his salary, were de facto red-circled following the appointment of an Executive Clinical Lead in 2018 and it would have been unlawful to reduce his (Mr Black’s) salary at that time.

5. The Complainant’s Evidence

The Complainant set out the basis for his complaint under the Act. His evidence was that he was aged 53 as of the date he submitted his originating complaint to the Workplace Relations Commission and that there was an effective difference of more than €32,000 between his salary and that of his comparator at the time although they both held Director level positions in the Respondent organisation and both reported directly to the Director General. The Complainant next gave evidence of his efforts during 2022 to seek clarification from the Respondent for the aforementioned disparity in pay. He said he received no clarification from the Respondent in relation to how the salary at which his comparator was remunerated had been determined. He submitted that there was a lack of transparency with regard to this issue and that although the Respondent had eventually produced documentation that dated back to 1991, shortly after Dr Dooley’s initial appointment on a fixed-term basis, those documents shed no light on how Mr Black’s salary had been determined.

The Complainant’s evidence then turned to the 2007 advertisement for the post of Director of Healthcare. He told the Court that that the advertisement was unique and like no other advertisement placed by the Respondent for an equivalent position at director level. He submitted that the following ‘essential requirement’ specified in the advertisement, in particular, was ‘in conflict with the law’:

“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.”

It was the Complainant’s submission he commenced his employment as Director of Human Resources on 4 December 2017 and from that point onwards that he had engaged in like work with Mr Black. He told the Court that he continued to be in that role in July 2018 when the Executive Clinical Lead was appointed. According to the witness, there was no discussion in 2018 of Mr Black being divested of responsibilities or of his having an enhanced role and nor was there and discussion that suggested that his role was being red-circled following Dr Devlin’s appointment. The Complainant told the Court that he had been aware at that time, in general terms, of the difference between his and Mr Black’s salary but wasn’t au fait with the exact extent of the difference.

The Complainant’s evidence next turned to a review of the Respondent’s management structures undertaken by Grant Thornton in 2021 which led to a report dated March 2022. One of the issues the report focused on, according to the Complainant, was the salary paid to those employed by the Respondent at Director level which, it was observed, was out of kilter with the salary level of those in comparable positions in the Civil Service. The Report recommended, inter alia, in the Complainant’s evidence, that the pay of all other Directors in the Irish Prison Service should be increased to the level then paid to Mr Black or, in the alternative, the Directors should be regraded at Assistant Secretary Level. The Complainant told the Court that the Grant Thornton Report was silent in relation to Mr Black being red-circled.

The Complainant went on to say that his colleague, Mr Trevor Jordan, having regard to the Grant Thornton recommendations, then drafted a business case to be presented to the Secretary General of the Department of Justice in preparation for engagement with the Department of Public Expenditure and Reform. The business case focused on seeking sanction to increase all Directors’ salaries to that of Mr Black. According to the Complainant, there was no reference in the business case to Mr Black being red-circled or having an enhanced role. The Complainant then went on to say that the business case was ultimately unsuccessful as the number of Principal Officers in place in the Respondent reporting to the Directors was insufficient to warrant the upgrade being sought.

Finally, in direct evidence, the Complainant told the Court that the first time he had been told that Mr Black had been red-circled in his post was the day before his hearing of the within complainant at the Workplace Relations Commission. He said this had not been mentioned when he first attempted to raise the issue of salary discrepancies with the Respondent’s Director General in May 2023.

The Complainant was cross-examined in relation to the interpretation he sought to put on the wording of the advertisement for the position of Director of Healthcare by the Respondent in 2007. The Complainant said he interpreted the ‘and/or’ wording in the essential requirement referred to earlier in this determination to mean that an applicant, to be eligible for appointment had to either: (i) hold a relevant professional qualification in the healthcare field and have a minimum of 7 years managerial experience in a healthcare/health services or related field’; or (ii) have a minimum of 7 years managerial experience in a healthcare/health services or related field.

Counsel also asked the Complainant about the level of his involvement in the recruitment, in 2018, of the Executive Clinical Lead. The Complainant said that as Director of Human Resources he was responsible at that time for all recruitment within the Irish Prison Service, however, he had no direct involvement in that process. The Complainant confirmed that he was aware of the nature of the decisions that Mr Black was required make in his role as Director of Healthcare when it was put to him that Mr Black never made clinical decisions either before or after Dr Devlin’s appointment.

6. Mr Jordan’s Evidence

The witness briefly outlined his employment history with the Respondent. He had been an Assistant Principal Officer in the Respondent’s Human Resources Department; he was appointed Personnel Officer at Principal Officer level in June 2018 and thereafter took up the role of Acting Director of Human Resources until October 2022. He then gave evidence in relation to the Grant Thornton Report. He told the Court that the Report’s recommendations had been accepted by the Respondent’s Senior Management Team and by the Director General and that he was thereafter directed to prepare a business case for submission to the Secretary General in the Department of Justice and the Department of Public Expenditure and Reform. The witness said that he had left his employment with the Respondent before any response had been received from DPER.

The witness’s evidence then turned to his role as Personnel Officer in the recruitment of the Executive Clinical Lead in 2018. The witness said that there had been no discussion with him of Mr Black being divested of clinical responsibilities following the appointment of the Executive Clinical Lead. He said that he was familiar with the concept of red-circling but was not aware that it had applied to Mr Black’s circumstances in July 2018 and nor was he subsequently informed that Mr Black had been red-circled.

7. Mr Purcell’s Evidence

The witness told the Court that he had been Director General of the Irish Prison Service between 2004 and 2011. He subsequently became Secretary General of the Department of Justice. The witness gave evidence in relation to the decentralisation of the Irish Prison Service to Longford in 2007 on foot of a 2003 Government decision. He told the Court that Dr Enda Dooley had been the Respondent’s Director of Medical Services since 1990 but did not intend to relocate from Dublin to Longford as part of the decentralisation process. The witness’s evidence was that it had become apparent in 2007 that the Respondent was unlikely to be able to attract candidates with Dr Dooley’s level of expertise to a decentralised post. For that reason, he said, the Respondent when advertising the post, decided to broaden the eligibility criteria to include either a relevant professional qualification in healthcare or seven years’ management experience in a healthcare/health services or related field. He said that if no suitable candidate with a professional qualification came forward as an applicant for the post, the Respondent would need to fill the post with somebody who had extensive relevant management experience in the healthcare area. A further factor that influenced this decision, according to the witness, was the level of scrutiny applied by the Inspector of Prisons to the provision of healthcare services to prisoners.

The witness told the Court that he chaired the selection panel on which Dr Dooley also sat. He said no business case was required for the post as the Respondent was filling a position that had pre-existing sanction and was being filled on the existing terms and conditions.

Under cross-examination by the Complainant, the witness strongly contested the interpretation of the qualification criterion contended for by the Complainant. He said the Respondent’s clear intention was to open the competition to individuals who met either element of the essential requirement: i.e. those who had a relevant professional qualification or had the minimum level of relevant management experience.

8. Mr Black’s Evidence

The witness told the Court that he took up the role of Director of Healthcare with the Respondent in 2008. The role, he said, involved having oversight of delivery of all medical and clinical services delivered throughout the prison estate, including services delivered by nurses, general practitioners and clinical psychiatrists. He told the Court that he had worked at management level in the HSE for many years before being seconded to the Department of Justice to establish the Direct Provision Service.

The witness said that the decision was taken in 2018 to appoint an Executive Clinical Lead in order to give greater structure to the Respondent’s healthcare services. He told the Court that, on his appointment to that role, Dr Devlin became the direct report for the Head of Nursing and also all doctors engaged by the Respondent reported to him from that point onwards. Dr Devlin, he said, had full responsibility for all clinical decisions whereas previously clinical decisions made by clinicians were sometimes elevated to the witness for affirmation or refusal. Subsequent to Dr Devlin’s appointment, the witness said that he had less day-to-day involvement in healthcare delivery and, for example, in 2012 he had been given a broad range of responsibilities in relation to prisoner welfare. Finally, in direct examination, the witness said that he was never made aware of any discussion in relation to his position being red-circled. His terms and conditions remained the same following Dr Devlin’s appointment.

Under cross-examination, the witness explained that following Dr Devlin’s appointment he had three pillar leads: the Executive Clinical Lead, the Head of Prisoner Services and the Head of Psychology. He did not accept that he had been divested of any responsibility when Dr Devlin was appointed.

9 Discussion and Decision

The principal issue for determination in this appeal arises from the Complainant’s assertion that age was a material factor leading to the difference between his salary and that of his chosen comparator during the cognisable period. The Complainant’s case in this regard is predicated entirely, it seems to the Court, on the construction of one element of the 2007 advertisement for the post of Director of Healthcare i.e. the following ‘essential requirement’:

“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.”

The Complainant submits that the foregoing criterion had the effect of transforming what had been – in Dr Dooley’s case – a qualification-based pay rate into – in Mr Black’s case – an age-related pay rate. In making this submission, the Complainant places particular importance on a term used by McKechnie J in paragraph 77 of his judgment in Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC 467. Before quoting the paragraph in question (par.77) , it is appropriate to observe that it occurs after the learned judge (in par. 75) had discussed the particular difficulties that attach to identifying a comparator in an age-related discrimination claim because – as had been noted in the European Commission’s 2005 paper, Age Discrimination and European Law and referred to in the judgment – “the fluid nature of a person’s age, and the uncertain and shifting nature of ‘age groups’, as well as the changing expectations which accompany changes in age, even between persons of similar ages, made the application of the comparator test difficult in this context.”

The learned judge then states in paragraph 77:

“Once a difference in treatment is shown to exist with a relevant comparator, it is then necessary to show that such is due to age; or put another way, that age is a ‘material factor’. Such discrimination may be obvious on its face, as was seemingly the case in [Perry v Garda Commissioner DEC-E2001-029], or else it may be more covert; referring to factors that are essentially ‘age proxies’, for example if an employee was dismissed for ‘being around too long’ or was denied promotion for being ‘overqualified’, when the decision was essentially based on age. As the Commission paper states, such ‘age proxies’ constitute direct discrimination ‘as age will actually be a ‘material factor’ in the decision-making process.’”

To summarise, the case being advanced by the Complainant is that because the disparity between his salary and his comparator’s salary during the cognisable period has its genesis in the eligibility criteria applied to the Comparator’s post when it was advertised in 2007, it is necessary in determining the within appeal to consider whether or not those criteria were themselves discriminatory on the age ground. This appears to the Court to be analogous to a ‘fruit of the poison tree’ type argument, although the Complainant didn’t use that term. The Complainant submits that this criterion is itself an ‘age proxy’ and, as such, constitutes direct discrimination.

It is the Complainant's submission that (on his reading of it) the criterion quoted above from the 2007 advertisement is discriminatory on the age ground because of the reference therein to ‘a minimum of 7 years managerial experience in a healthcare/health services or related field’.

The Complainant told the Court that he interpreted the ‘and/or’ wording in the essential requirement in question to mean that an applicant, to be eligible for appointment had to either: (i) hold a relevant professional qualification in the healthcare field and have a minimum of 7 years managerial experience in a healthcare/health services or related field’; or (ii) have a minimum of 7 years managerial experience in a healthcare/health services or related field.

The Complainant offered no explanation to the Court as to why it should accept that the insertion into the advertisement a requirement for a minimum of 7 years managerial experience in a healthcare/health services or related field’ is an age proxy (in the sense in which that term was used by McKechnie J and by the European Commission) other than to assert that 7 years’ managerial experience was not a bone fide occupational requirement for the post of Director of Healthcare.

The Court, however, finds the evidence given by Mr Purcell, by way of explanation for the inclusion of the aforementioned criterion, to be coherent, credible and convincing. In the Court’s view, the explanation offered by Mr Purcell in evidence unqualifiedly justifies the Respondent’s decision to include the criterion in the advertisement.

In summary the position outlined by Mr Purcell was as follows. The Respondent had a vacancy to fill in 2007 arising from the incumbent’s (Dr Dooley) decision not to relocate to Longford as part of the decentralisation programme; a particular salary level for that position had been sanctioned for many years having regard to the need to ensure that the position remained attractive to an appropriately qualified medical practitioner and was commensurate with the salary such a person could command elsewhere within the public sector; in the context of decentralisation – and having regard to the nature of the working environment in the prison service – the Respondent was acutely aware of the challenge it faced in seeking to attract a suitably qualified clinician to take up the Director of Healthcare post being relocated to Longford and, therefore, decided to specify an alternative eligibility criterion (i.e. 7 years’ managerial experience in a healthcare/health services or related field) to that of ‘a third level/professional qualification in the healthcare field’.

Having regard to the foregoing, and in particular to Mr Purcell’s evidence, the Court concludes that the Respondent did have a bone fide objective reason for the inclusion of an alternative eligibility criterion in the 2007 advertisement and that that alternative criterion was reasonably regarded by it as being objectively commensurate with the initial criterion to which it was an alternative, having regard to the nature of the responsibilities that would fall on the successful applicant following his/her appointment. It follows that the Court does not accept that the Complainant has made out the case that the 7 years’ experience criterion was a proxy for age-related discrimination. In fact, it appears to the Court that the Complainant has misunderstood and/or misapplied that term as used by McKechnie J.

The Court finds that the Complainant’s submission that the7 years’ experience criterion he takes issue with constitutes direct discrimination puzzling. Directly discriminatory to whom? There was no evidence before the Court that the Complainant was even aware of the advertisement in 2007 let alone that he might have contemplated applying for the role had he deemed himself eligible for it (which, by virtue of the interpretation he seeks to put on the qualifying criteria, he couldn’t have). Needless to say, the advertisement was also placed some ten years before the Complainant became an employee of the Respondent and some fifteen years before the commencement of the period comprehended by the within claim under the Act.

For the foregoing reasons, the Court finds that the appeal fails and the decision of the Adjudication Office is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CC	______________________
8th January 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.