Case Number: ADJ-00013276. Workplace Relations Commission

• Docket Number: ADJ-00013276
• Hearing Date: 29 April 2019
• Date: 28 April 2020
• Court: Workplace Relations Commission

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.

Background:

The complainant submits that he was indirectly discriminated against on the age grounds by the failure of the respondent to recognise his qualification and promote him. The complainant withdrew a second complaint submitted (et-153992-ee-15). During this hearing, submissions were substantial with copious volume of documentation and oral evidence heard over 2 days and, whilst I will not be referring to every event or reference every case law presented, I have taken into account all the submissions including oral and written made to me in the course of my investigation as well as the evidence presented at the hearing. By way of background to the issue, in 2002 there was a reorganisation within Community Health under the Brennan Review . Prior to that, community health medicine had been staffed by Area Medical Officers (AMOs) and Senior Area Medical Officers (SAMOs). The post of SAMOs required a Degree/Diploma in Public Health or equivalent and in 1988 a recommendation included inter alia that SAMOs should have a Masters degree in Public health. As a result of the Brennan Review, the grade of AMO was to be retained and the grade of SAMO was to be replaced with the grade of Senior Medical Officers (SMOs). The role of SMO required a Masters/Diploma in Public Health or equivalent. This 2003 Agreement also created one Principal Medical Officer (PMO) grade per health board area. In 2003 following industrial action by community doctors, agreement (hereinafter referred to as the 2003 Agreement) was reached with the said doctors whereby it was agreed that there would be no further recruitment at AMO level, and that any new doctors wishing to pursue careers in Community Health Medicine would do so at SMO level, subject to the requirement of the Masters/Diploma in Public Health or equivalent qualification.

Summary of Complainant’s Case:

Preliminary Issue: The complainant submitted that 23 July 2017 was the most recent date of discrimination and that the complainant had submitted a complaint form to the WRC and received confirmation from the WRC through a letter dated 13 March 2018 that the complaint had been received on 18 January 2018. The WRC outlined to the complainant that an issue had arisen while they had attempted to download the complaint form, which explained the reason for a different date as “receipt date” on the actual complaint form. The complainant submitted that the complaint was within time and that he should not be penalised by issues relating to difficulties with the WRC downloading the form. The complainant confirmed that a second complaint (et-1532992-ee-15) was withdrawn. Substantive Issue: The complainant submitted that on 25th May 2017, he applied for the position of SMO and was advised on 23rd July 2017 and by letter dated 26 July 2017 that he was unsuccessful in the eligibility exercise as he did not have a “master’s in public health/diploma in public health and/or equivalent qualification”. The complainant detailed that the set of qualifications outlined as suitable for the SMO grade posed a problem as it does not recognise his Diploma in Child Health which the complainant possesses and the Diploma in Child health is also a qualification that is more likely to be held by those who started their careers at the grade of AMO and therefore older people. The complainant further submitted that AMOs are statistically older than SMOs and that the Diploma in Child Health which a majority of these older AMOs would hold, has a NFQ rating of 9 which is equivalent to most master’s level qualifications. In response to the statistics provided by the respondent the complainant outlined that within his community group It was submitted that the respondent has indirectly discriminated against the complainant on the grounds of age and that it remains ongoing. The respondent has penalised him by confining him to a salary scale and level of professional status below that of his younger colleagues The result of this is that the complainant is stranded at the basic grade of entry into his speciality and the unfairness is exacerbated by the fact that the complainant has been required to induct and train younger Doctors who have entered the community health medical service since 2003. In effect, the complainant is doing the same or like work as other doctors who are on a higher salary and status scale than the complainant. Over time as a result of changes in work practices and the non-filling of vacancies, the differentiation between the work done by AMOs and SMOs has become less and less relevant in the complainant’s geographical location.. Evidence from Dr A, (PMO) was that the complainant does the same work as the SMOs. In cross examination she confirmed that she had previously reviewed the complainant’s application for an SMO grade in 2017 and supported the view that he was not eligible because of his qualification. She outlined that she did not raise any objection at the time that he was indirectly discriminated against. It was submitted that the vast majority of the work of an SMO or an AMO involves child health and it is reasonable and obvious that the postgraduate Diploma in Child Health as an equivalent qualification should suffice for appointments to SMO posts. It was set out that when the complainant retires, he will be replaced by SMOs who will do exactly the same job that he does. The complainant submitted that while there are some SMOs nationally whose main function is in management; the vast majority do the same work as AMOs whom they work alongside on a daily basis. Furthermore, no review has taken place of the list of qualifications deemed suitably equivalent for the role of SMO. The complainant rejected that the issue was more appropriate to an industrial relations forum as had been previously suggested by the respondent and it was submitted that by the interpretation and operation of the 2003 Agreement, the respondent had indirectly discriminated against the complainant on the grounds of his age and this discrimination remains ongoing. Case law cited included Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, Games v University of Kent UKEAT/0524/13/DA, King v Great Britain China Centre [1992] ICR516, Citibank v Massinde Ntoko EED045

Summary of Respondent’s Case:

Preliminary Issue: The respondent submitted that the complaint was out of time as detailed at the top of the complaint form where it states, “Receipt date: 09/03/2018”. Substantive Issue: Without prejudice to their claim that the complainant was out of time the respondent submitted that the complainant had not been discriminated against and had not established a prima facie case of discrimination. It was submitted that the complainant had detailed in his original complaint that his claim was similar to that of Kevin Brogan v HSE which had been subject to an adjudication hearing (DEC-E2016-078), an appeal to the Labour Court (EDA1633) and an appeal on a point of law to the High Court (2016/395 MCA). The complaints in Brogan v HSE were the same as in the instant case, namely that the application of the 2003 Agreement and/or requirement for particular educational qualifications for SMO candidates was and is discriminatory on age grounds. The High Court set aside the determination of the Labour Court as it found that a two-pronged test is...