Case Number: ADJ-00013657. Workplace Relations Commission

• Date: 21 May 2020
• Docket Number: ADJ-00013657
• Court: Workplace Relations Commission

Procedure:

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

Background:

The complainant submits that she did not receive equal pay because of her age, that she was indirectly discriminated against on the age grounds by the existence of a Legacy Transfer Policy (hereinafter referred to as LTP) and the failure of the respondent to promote the complainant because of indirectly discriminating against the complainant Taking into consideration all factors, I have taken the decision to anonymise this decision. During this hearing, submissions were substantial with copious volume of documentation and oral evidence 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 it is of note that 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 master’s 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. 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. The complainant has a master’s degree and in 2015 was successful at interview and ranked number 44 on a panel for the position of SMO. There exists 9 community health organisations (CHOs) across the country and in the complainant’s specific CHO, (hereinafter referred to as CHO_A), there exists a transfer policy which was established in 1971. This transfer policy applies to Counties X, Y and Z in CHO_A and employees in CHO_A may avail of a post that arises at their own grade within CHO_A through the LTP. If the post is not filled through the LTP, then the position is passed to the national panel.

Summary of Complainant’s Case: CA-00017516-001

Preliminary Issue: The complainant previously submitted a complaint ref et-150190-ee-14 which was heard on 14th January 2016. The complainant submitted the instant complaints on 19th February 2018 and submitted in her complaint form that “equal pay box was not ticked on my previous form”. In further correspondence with the WRC dated 19th February 2018; the complainant references that the instant complaints are “relodged” complaints. In response to the respondent’s submission that et-150190-ee-14 had been withdrawn as per her then legal representative in a letter dated 6th December 2018, the complainant submitted that she did not wish her equal pay claim to be withdrawn. Substantive Issue: The complainant submits that she has the same qualifications as SMOs and does the same work but with unequal pay as she is discriminated against because of her age as SMOs are younger. The complainant initially cited as comparators Dr AA and Dr BB SMOs and later submitted that SMOs within CHO_A would be her comparators for this equal pay complaint. It was submitted that the complainant sourced her information regarding her comparator pool from a census and from data that is publicly available. This data indicated that: The Mean age of 7 AMOs in CHO_A is 61.4 years The Mean age of 15 SMOs within CHO_A is 48 years The Mean age of 5 SMOs within County X is 54 years The Mean age of 6 SMOs within County Y is 42 years The Mean age of 4 SMOs within County Z is 48 years. The complainant submitted that her line manager, an SMO, is younger than her and despite having great experience than her manager and doing the same work, the complainant is paid less. It was submitted there is a significant difference between the mean ages of the doctors employed at SMO grade and those of doctors at the AMO grade. The complainant asserted that differences in salary between the grade of AMO and SMO is not a justified difference in salaries as the grade of AMO comprises of older employees maintained on a lower rate of pay for historical reasons only.

Summary of Respondent’s Case: CA-00017516-001

Preliminary Issue #1: The respondent submitted that the complainant had withdrawn a previous complainant ref et-150190-ee-14 and that the complainant could not look for that complaint to be “relodged” as that is not an accurate representation of the status of a new complaint. The respondent noted that the complainant’s submissions are the same as her submissions for her withdrawn claim et-150190-ee-14 and the respondent had no issue with same provided the new complaints are treated as new complaints and not merged with the withdrawn case et-150190-ee-14. Substantive Issue: Without prejudice to the above, the Respondent refutes the allegations and submitted that the complainant had failed to provide primary facts on which she could rely on in alleging discrimination. It was submitted that her two comparators namely Dr AA and Dr BB are no more than an assertion that she does the same work as them but earns less than them. The complainant in effect had failed to address the population of all AMOs and SMOs. When the complainant was requested to provide appropriate comparator pools, she later suggested all the AMOs in CHO_A whom she regarded as significantly older but it was submitted that the complainant had failed to provide any evidence that she had been discriminated against on the age grounds. Furthermore, evidence given was that the work of AMOs and SMOs as provided for in the job description is different and requires a specific level of educational qualification that not all AMOs have. The respondent submitted that nominating two comparators or alternatively a pool of AMOs and SMOs within a specific area of the respondent’s area without consideration of the full make-up of AMOs and SMOs indicate the complainant’s failure to establish a prima facia case. The respondent also submitted that the LTP has benefitted the complainant in the past and that the complainant meets the educational qualification standards required for the role of SMO and that she was placed #44 on the panel for promotion in 2015. The complainant is currently placed #17 on the panel and has not expressed any interest in a post of SMO in a county other than County X and once she secures an SMO place she will be in a position to secure the same pay as SMOs. The respondent outlined that the complaints are spurious, and that the complainant is being brought solely for the purpose of pursuing an IR agenda while avoiding engaging with the binding mechanisms set out in public service agreement for the resolution of industrial relation issues. The complainant at the time of hearing was 63 years old and data from 2018 which outlined that there are a total of 39 AMOS nationally with 31 AMOs working in community healthcare organisations. The age profile across community healthcare organisations is: Age 30-34: 1 35-39: 0 40-44: 4 45-49: 4 50-54: 7 55-59: 4 60-64: 7

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