Case Number: DEC-E2012-009- Full Case Report. Equality Tribunal

• Court: Equality Tribunal
• Date: 01 January 2012
• Docket Number: DEC-E2012-009- Full Case Report

The Equality Tribunal

Employment Equality Acts 2000 to 2011

EQUALITY OFFICER'S PRELIMINARY DECISION
DEC-E2012-009

Parties

248 Named Complainants
(Represented by Irish Nurses and Midwifes Organisation)

AND

Health Service Executive
(Represented by Corporate Employee Relations)

File references: EE/2008/465, EE/2008/730, EE/2009/073-087, EE/2009/092, EE/2010/671 Date of issue: 30 January 2012

Keywords:
Employment Equality Acts - Gender - Equal Pay - Indirect discrimination - Prima Facie case.

1. DISPUTE

1.1 This dispute concerns an equal pay claim by 248 Named Complainants who are Assistant Directors of Public Health Nursing that they performs 'like work' in terms of section 7 of the Employment Equality Acts 1998-2008 with a number of named comparators who are Assistant Directors of Nursing, Mental Health and that they are therefore entitled to the same rate of remuneration as paid by the respondent to those comparators in accordance with section 29 of the Acts. The claim is made on the grounds of gender and the named respondent is the Health Services Executive (HSE).

1.2 The complainants referred claims to the Director of the Equality Tribunal on 11 July 2008, 7 November 2008, 2 February 2009, 5 February 2008 and 8 September 2010. On 27 May 2010, in accordance with his powers under section 75 of the Acts, the Director delegated these cases to Tara Coogan, an equality officer for investigation, hearing and decision in accordance with the Acts. A preliminary enquiry was held on 1 October 2010 following which both parties were requested to make submissions in relation to 'like work' as set out in section 7(1) of the Acts and to agree a sample group of comparators for work inspection purposes. Submissions were received on 26 November 2010 and 6 December 2010. A sample of comparators was agreed on 26 February 2011. A Labour Court recommendation in Buckley v HSE (EDA113) - a case decided on similar facts as argued by the complainant - issued on 9 February 2011. Comments in relation to same were sought from the complainants and the respondent. A hearing into a preliminary matter was requested by the respondent and was scheduled for 12 October 2011. At this second hearing it was submitted on behalf of the complainants that the Labour Court had erred in its interpretation of law relating to equal pay cases. The complainants were not in a position to elaborate on this matter, citing a heavy work load, and suggested that they may be in a better position in 3 or so months to do so. The respondent objected to this and pointed out that the complainants could have appealed the Labour Court decision. The Tribunal was invited to issue a preliminary issue in the matter.

2. PRELIMINARY ISSUE 2.1. Facts:

2.1.1. The complainants are employed by the respondent as Assistant Directors of Public Health Nursing whereas the 80 named comparators are employed by the respondent as Assistant Directors of Nursing, Mental Health Services. The complainants contend that they perform "like work" with the named comparators and that the reason why their pay scales are lower than those of the comparators is significantly because of the complainants' gender.

2.1.2. The respondent disputed these claims stating that the complainants do not perform "like work" with their comparators. It was submitted that the work carried out by the comparators is of greater value in terms of responsibility and requirements of the job and that there are objective reasons in line with section 19(4)(b) of the Acts for the differences in the pay. The respondent refuted that the complainants have established a prima facie case of indirect discrimination as required by section 85A.

2.1.3. The Assistant Director of Nursing, Mental Health salary scale was determined under the Proposals for Agreement on the Pay and Conditions of Nurses as provided for under the Agreement for Pay incorporated in the Programme for Competitiveness and Work (hereafter "Blue Book Agreement") dated 23 September 1996. It was submitted that the salary scales were negotiated on behalf of all Assistant Directors of Nursing, Mental Health regardless of gender.

2.2. The Law

2.2.1. The Labour Court stated in Irish Aviation Authority v Irish Municipal, Public and Civil Trade Union (No DEP993): "In this case, the difference in remuneration between the claimants and the comparators derives from the grading structure operated by the respondent. Therefore a case of direct discrimination does not arise." I am satisfied that the claims before me are based on grading structures operated by the respondent. I am therefore satisfied that I this is an investigation into a claim of indirect discrimination only. Accordingly to ground a case of indirect discrimination the complainants must show that, at the relevant time, "an apparently neutral provision, criterion or practice" was in place that "put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary."

2.2.2. It is important to note that the Labour Court in HSE v Buckley (EDA113) clearly stated that it does not accept that even if pay scales were originally gender based, that, of itself, is sufficient to establish a prima facie case of discrimination within the statutory meaning of that term. In order to establish a prima facie case the complainants must identify the "provision, criterion or practice" that is complained of and that she or he alleges disproportionately and adversely affects her or his gender. The complainants must present credible evidence to the effect that that would indicate that the provision, criterion or practice continues at the time the complaint is first made, and that it adversely affects the complainants' gender.

2.2.3. Showing...