Case Number: ADJ-00022454. Workplace Relations Commission

• Docket Number: ADJ-00022454
• Date: 21 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 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-00029094-001

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, 2015 and 2019. The complainant submits that she has the same qualifications as SMOs and does the same work but is discriminated against because of the existence of the LTP as it benefits younger SMOs.. 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 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 County X and 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. It was further submitted by the complainant that the age profile of the doctors on the transfer file was 42 years which is significantly younger than the complainant’s age of 54. In January 2019 available SMO hours were granted to an SMO who utilised the LTP and transferred into County X which in effect is discriminating against the complainant. 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 The complainant submitted that a cohort of older doctors who are employed at the historical AMO grade have been denied all opportunities to be promoted because of the existence and application of the LTP which comprises of significantly younger doctors who transfer into County X.

Summary of Respondent’s Case: CA-00029094-001

The respondent submitted that 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 through the LTP. 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 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 54 years old and data from 2018 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

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