Case Number: ADJ-00021516. Workplace Relations Commission

• Docket Number: ADJ-00021516
• Hearing Date: 10 April 2019
• Date: 22 May 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following 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 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-00028215-001

The complainant is on a national panel awaiting any SMO role that may arise. However, if any SMO post arises in one of the three counties covered by the LTP; priority is given to those already holding the position of SMO within CHO_A. This LTP is unique to CHO_A and covers three counties X, Y and Z and this LTP does not exist across the rest of Ireland. On a regular basis available SMO vacancies are filled from the LTP excluding the complainant as she is not considered at the existing grade of an SMO. The LTP had been used to fill SMO posts in in 2008, 2010, 2013, 2014 and 2015. In the latter part of 2018 an SMO in County X reduced her working hours which resulted in available SMO hours in County X. The available SMO hours were not referred however, to the National SMO panel, in line with the national recruitment policy but instead the LTP was utilised and the SMO hours were given to an existing SMO located in County Z who was able to transfer to County X via the LTP. In February 2019 the complainant was advised that the LTP would continue to operate as it has done for many years. The complainant submits that the appropriate comparator pools for this complaint should be the pool of those within County X who are seeking an SMO post in County X, as there are no AMOs in County Y and Z and she submitted that her research indicates that the age profile of AMOs within County X is older than those currently transferring through the LTP and therefore the LTP is indirectly discriminating against the complainant within County X on the grounds of age. The complainant outlined that her research through her own census and other data had confirmed that : The Mean age of 7 AMOs in County X is 61.4 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. It was submitted by the complainant that the age profile of the doctors who have applied to transfer to County X through the LTP are significantly younger than the complainant and that the appropriate comparator pool for the complaint should be the age profile of the AMOs in County X and that of doctors on the legacy panel seeking transfer to County X. The complainant advised that she would assume that if SMOs are living in County X and working in either County Y or County Z they would apply for a transfer to County X and that she was not privy to the list of actual number of SMOs seeking transfers to County X. The complainant concluded that the mean age of SMOs on the LTP seeking transfers to County X is significantly less than the mean age of County X’s AMOs which is 61.4 and The complainant submitted that a cohort of older doctors who are employed at the historic AMO grade including herself; have been denied all opportunities to be promoted because of the existence and application of the LTP which composes of significantly younger doctors who transfer into County X.

Summary of Respondent’s Case: CA-00028215-001

The Respondent refutes the allegations and submits that the LTP has benefitted the complainant in the past. It was submitted 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. Furthermore the complainant is on a panel for vacancies only and the LTP panel is used by employees moving within their own grade. The complainant is not looking to move within her own grade. The specific example that the complainant refers to involved an existing SMO who took on SMO hours available in County X. The complainant albeit is on the panel, is not currently an SMO. The respondent asserted that 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 53 years old and data from 2018 which outlined that there are a total of 39 AMOS nationally with 31 AMOs working in community...