Case Number: DEC-E2018-020. Workplace Relations Commission

• Judgment Date: 01 October 2018
• Court: Workplace Relations Commission
• Docket Number: DEC-E2018-020
• Parties: Deirdre Kelly v Health Service Executive

EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E2018-020 PARTIES Deirdre Kelly Complainant v Health Service Executive (Represented by Arthur Cox Solicitors) Respondent File reference: EE/2013/243 Date of issue: 19th October 2018

1. Dispute:

1.1 On the 14th May 2013, the complainant referred a complaint of discrimination pursuant to the Employment Equality Acts. On 25th May 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to hearing on the 5th June 2015 and the 2nd February 2016. The complainant was accompanied by two colleagues. The respondent was represented by Arthur Cox Solicitors and members of the HR Department attended as witnesses.

1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. Summary of the complainant’s case:

2.1 The complainant commenced employment in 1985 with the predecessor of the respondent and was initially employed as a Grade II clerk typist. In 2000, she began working in roles related to recruitment, becoming first a Grade 6 and then a Grade 7. In 2006, she was appointed in an acting capacity to a Grade 8 position, in which she remained up until this complaint. Her position has since been regularised into a Grade 8 post because of the Public Service Stability Agreement 2013 – 2016, the ‘Haddington Road’ agreement. From 2006, the complainant has managed a large team in the National Recruitment Service, part of HSE Corporate.

2.2 The complainant outlined that, historically, the health boards adopted different practices regarding paying increments for acting up positions. Some paid increments to staff acting up, while others did not. The complainant had worked for the Eastern Health Board and it did not pay increments to staff acting up. The complainant said that on taking the acting up post, she had reached the top of the Grade 7 scale and moved to the first point of the Grade 8 scale. She did not accrue increments thereafter.

2.3 The complainant learnt that the comparators identified in the EE1 claim form was paid increments. Two other male colleagues were later able to secure the payment of increments when acting up. While the payment of increments was against policy, the complainant approached her manager to ask that she also be paid increments. The manager said that he would approach the National Director and reported back that her application had been declined. He said that her post was likely to be regularised as part of the forthcoming public sector agreement, i.e. the agreement later known as ‘Haddington Road’. On the 22nd January 2013, the complainant wrote to the respondent, asking that incremental credits be applied to her in the same way as applied to other senior managers.

2.4 The complainant said that one comparator was a HR manager who had acted up to a General Manager post, the next step to his existing Grade 8 role. The other comparator was acting up to a Grade 8 post in Finance. The complainant believed that both came to the HSE from the Eastern Health Board. She did not have information about another male paid increments while acting up. She only knew of him through the submissions made by the respondent in answer to her complaint.

2.5 In concluding comments on the first day of hearing, the complainant outlined that the facts that she became aware that four men were being paid increments against stated policy and that her request for the same treatment was turned down was sufficient to raise the issue of discrimination.

2.6 The complainant referred to two male colleagues who had been successful in bringing the matter of increments to a Rights Commissioner. While they did not work in HSE Corporate, they were part of the health board from which HSE Corporate was established. Addressing the submissions of the respondent, the complainant asked whether the 14 females identified had sought the payment of increments. The same question was posed in respect of the 15 males. While the female referred to by the respondent had been assigned increments on the 5th November 2013, the complainant had sought increments in June 2013. She asked whether this group of 14 females and 15 males were aware that increments were being paid to several colleagues.

2.7 Commenting on the respondent’s submission, the complainant said that she had asked whether a review had been carried out in finance. She never heard of qualifications being used as a basis to pay incremental credit. She outlined that she had a qualification in her area. She further commented that job evaluations were carried out for promotional purposes and not for the purpose of assessing whether an employee should be paid incremental credit.

3. Summary of the respondent’s case:

3.1 The respondent outlined that the complainant had not established a prima facie case of discrimination and had not shifted the burden of proof to the respondent. While the relative lack of transparency in awarding increments was not ideal, it was not sufficient to establish a prima facie case of discrimination.

3.2 The respondent outlined that this claim related only to the payment of incremental credit; all else was determined by the grading structure. The norm was that incremental credit was not paid in respect of acting up posts. Decisions were made to pay increments in respect of four individuals, but on an entirely gender-neutral basis. Those decisions were based on the work performance by the four individuals, including projects and tasks undertaken. The representative said that he had first-hand experience of one of the comparators, who had undertaken high profile negotiations on behalf of...