Case Number: ADJ-00018068. Workplace Relations Commission

• Docket Number: ADJ-00018068
• Hearing Date: 04 December 2019
• Date: 21 May 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaint 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 and that she has been treated differently as a fixed term worker. 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 which included being a member of the Irish College of General Practitioners which the complainant is. In 2014 the complainant was successful at interview and ranked #16 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-00023224-001

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 A1 and Dr B1 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. The complainant outlined that her research through her own census and data available nationally had confirmed that for September 2019: The Mean age of 7 AMOs in CHO_A is 62 years The Mean age of 4 doctors on transfer panel is 42 years The Mean age of 15 SMOs within CHO_A is 48 years It was submitted that the national cohort of AMOs is significantly older than the national cohort of SMOs as nationally the average age of SMOs is 48 and nationally the average age of AMOs is 58. Additional data from 2019 identified that there were a total of 150 SMOs broken up into the following age groups: 30-34: 3 35-39: 23 40-44: 29 45-49: 25 50-54: 28 55-59: 21 60-64: 18 65+: 3 The age profile of 17 AMOs across community healthcare organisations is : Age 30-34: 0 35-39: 0 40-44: 0 45-49: 2 50-54: 6 55-59: 1 60-64: 6 65+: 2 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 and this age difference would be greater if the comparator pool was extended nationally. 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, The complainant submitted that she is doing like or a similar work as the SMOs and that the duties are transferable and interchangeable at the request of the PMO and that despite the complainant’s additional years of experience over many SMOs, she remains at a level below them because of her age.

Summary of Respondent’s Case: CA-00023224-001

The Respondent refutes the allegations and submitted that the complainant had failed to provide primary facts on which she could rely on in alleging unequal pay on the grounds of age. It was submitted that her two comparators namely Dr A1 and Dr B1 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. It is clear from case law that a comparator may not be based on an unrepresentative group. The respondent also submitted that the complainant meets the educational qualification standards required for the role of SMO and that she was placed #16 on the panel for promotion in 2014. The complainant has not expressed any interest in a post of SMO in a county other than County X and once she secures a 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 54 years old and data from 2018 outlined that there were a total of 39 AMOS nationally with 31 AMOs working in community healthcare organisations. The age profile across community healthcare organisations was: Age 30-34: 1 35-39: 0 40-44: 4 45-49: 4 50-54: 7 55-59: 4 60-64: 7 65+: 4 There are a total of 104 SMOs nationally with 88 working in community healthcare organisations. The age profile across community healthcare organisations is given below and would suggest that the age range of AMOs includes people across all the age brackets: 30-34: 4 35-39: 11 40-44: 22

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