SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
ST. JAMES'S HOSPITAL (APPELLANT/RESPONDENT)
(REPRESENTED BY BCM HANBY WALLACE, SOLICITORS)
- AND -
DR. BENNETT KIM HENG ENG (RESPONDENT/CLAIMANT
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal on behalf of St. James's Hospital against Equality Officer's Recommendation No. Dec-E/2001/041.
2. The background to this case is set out in the Equality Officer's Recommendation (details with the Court). The Equality Officer, in her Recommendation, which issued on the 20th of December, 2001, found that the claimant was discriminated against contrary to the terms of the Act.
Management appealed the Recommendation to the Labour Court on the 30th of January, 2002, on the following grounds:-
The Equality Officer erred in law, and in fact in deciding that the appellant discriminated against the Respondent in the following manner:-
(a)In finding that the only difference between the complainant's relationship and the
comparator's relationship with the Respondent was that they received written
contracts of employment and received a basic salary and he did not.
(b) In finding that the year's internship was not exclusively concerned with training for
carrying on an occupational activity and cannot, therefore, be regarded as vocational
training within the meaning of the Employment Equality Act 1998.
(c) In finding that the exemption provided in Section 12(7) of the Employment Equality
Act, 1998, in relation to treatment has no application to the case brought by the
(d) In finding that the existence of a training opportunity does not detract from the
existence of an employment relationship.
(e) In finding that the complainant held the same position (intern) as the comparators.
(f) In finding that a prima facie case of pay discrimination on race ground was
(g) In finding that the onus shifted to the Respondent to rebut the claim of pay
discrimination by showing that there were grounds other than nationality for the
difference in pay.
(h) In finding that while the work permit rules require that preference is given to Irish and EEA nationals to avail of employment opportunities, it was not envisaged that this
preference applied to paid posts only and the non EEA nationals could instead be
employed in unpaid posts.
(i) In finding that the work permit rules of the Department of Enterprise, Trade and
Employment did not constitute a legitimate ground other than nationality for the
difference in pay between the complainant and the comparators.
(j) In finding that the complainant was displaced in the allocation of paid posts.
(k) In finding that the reason that the complainant was displaced in allocation of paid posts was because he was not an EU/EEA national and not because of his exam ranking.
(l) In disregarding the significance of the claimant's exam ranking.
(m) In finding that article 39 of the EEC Treaty, formerly Article 48 of the Treaty of Rome, does not oblige employers to discriminate against non EU nationals by corollary with
the obligation it imposes on Members States not to discriminate between their own
nationals and other nationals of other EU Member States.
(n) In finding that the priority afforded by Regulation 1612/68 to nationals of Member
States as regards access to available employment in another Member State is
necessarily subject to the requirements of the 1998 Act.
(o) In finding that Regulation 1612/68 does not oblige discriminatory treatment of non-EU
nationals in circumstances where an employer is bound by national law not to
discriminate on the grounds of nationality.
(p) In finding that Articles 39 and 40 of EC Treaty, formally articles 48 and 49, and
Regulation 1612/68 do not allow for the displacement of non-EU nationals in order to
give priority to EU graduates in the allocation of funded intern posts.
(q) In finding that whilst it appears under European Law that third country nationals
resident in the EU do not enjoy the right to equal treatment with Member State
nationals, it does not require discrimination against such persons and the matter of how they are treated is left to each Member State.
(r) In finding that the provisions of the Employment Equality Act 1998 apply.
(s) In finding that the EC Treaty and Regulation 1612/68 do not constitute a valid ground
other than nationality for the difference in pay between the complainant and the
(t) In finding that the Respondent failed to rebut the claim of pay discrimination on the
race ground contrary to Section 29 of the Employment Equality Act 1998.
(u) In finding that the complainant was discriminated against in relation to his pay on the
race ground contrary to 29(1) of the Employment Equality Act 1998.
(v) In ordering that the complainant be paid arrears of salary.
(w) In ordering that the complainant be paid living out allowance.
(x) In failing to have any or due regard for the generality of the Employment Equality Act,
(y) In failing to have any or due regard for the generality of the EC Treaty and EC and
Without prejudice to the foregoing, the appellant reserves the right to adduce such further or other grounds as may be appropriate to the appeal of the Recommendation of the Equality Officer on the hearing of the appeal.
The Court heard the appeal on the 29th of May 2002.
The complainant is a medical doctor of Malaysian nationality. He obtained a primary degree in medicine from Trinity College Dublin in June 2000. Before qualifying as a medical practitioner he was required to obtain a certificate of experience in the practice of medicine from a teaching hospital.
Section 28(2) of the Medical Practitioners Act 1978 provides that a certificate of experience shall not be granted to a person who has obtained a primary qualification in medicine unless that person has been engaged in employment in a residential medical capacity in one or more hospitals approved by the Medical Council for this purpose. The practical effect of this provision is that a person holding a primary degree in medicine must complete a period of internship in an approved hospital, before they can be registered to practice as a medical doctor.
Seventy-seven paid intern posts allocated between Tallaght Hospital and St. Jame's Hospital were available to medical graduates of Trinity College in June 2000. In the first instances these posts are allocated to graduates on the basis of their examination results. The complainant finished 81st out of 85 graduates in the overall ranking of the final medical examinations and was not assigned to any of the funded posts.
It would appear that the policy pursued in relation to the filling of intern posts was that, notwithstanding the examination results, citizens of Ireland and other EEA countries are given priority over citizens of non - EEA countries. In pursuance of this policy a candidate who came 82nd in the examinations and who was an Irish citizen was allocated a paid post in preference to higher-ranking candidates from non- EEA countries, including the complainant.
Where candidates fail to secure a paid intern post, what are described as supernumerary posts are created. The complainant was appointed to one of these supernumerary posts at St. James Hospital. He was not paid in respect of basic pay, but did receive payments in respect of rostered overtime and for being available on call. Those appointed to paid intern posts received basic pay of £1,588.92 per month together with a living out allowance of £30.41 per week.
The complainant brought a claim for equal pay, pursuant to Section 29 of the Employment Equality Act 1998 (the Act), citing two doctors appointed to paid intern posts as comparators. The claim was investigated by an Equality Officer of the Office of the Director of Equality Investigations. The Equality Officer found that the complainant had been discriminated against in relation to his pay on race grounds, contrary to Section 29(1) of the Employment Equality Act 1998. The Equality Officer directed that the respondent pay arrears of salary, overtime and allowances so as to bring the remuneration of the complainant into line with the comparator.
It was against that decision that the respondent appealed to the Court.
Summary of the Respondents Submission.
The respondent submitted that the difference in remuneration complained of arose because the complainant was employed in a supernumerary post rather than a funded post. This, they contend, is a ground other than race within the meaning of Section 29(5) of the Act.
The respondent further submitted that it provides training for graduates of Trinity College’s medical school on the basis of the allocation system operated by Trinity College. That system of allocation is based, in the first instance, on the ranking of students in their examination results. It then gives priority to citizens of Member States of the European Economic Area (EEA). The result of this allocation system is that all candidates who are citizens of an EEA Member State are allocated posts on the basis of their ranking inter-se, before a place can be allocated to citizens of non-EEA States. This arrangement, the respondent contends, is necessary so as to take cognisance of the work permit rules of the Department of Enterprise Trade and Employment.
It was submitted that in comparing the treatment of a person of one nationality with that of a person of a different nationality an employer is entitled to take account of the relevant circumstances of each individual. In relation to the instant case the respondent contends that the requirement to obtain a work permit in the case of the complainant and the absence of such a requirement in the case of EEA nationals, is a relevant circumstance which they were entitled to take into account in allocating funded intern posts. They referred the Court to the decision of the Court of Appeal for England and Wales in the case ofDhatt v McDonalds Hamburgers Ltd [1991) IRLR 130as authority for this proposition.
The respondent argued that the complainant would not have qualified for appointment to a funded intern post on the basis of his exam results. He finished in 81st place out of 85 graduates in circumstances where there were only 77 funded posts. This, they say, is a further ground other than race for the difference in pay between the complainant and the comparators.
Finally, the respondent told the Court that the system used to fill intern posts in this instance is one of long standing. Posts were allocated by the University and the criterion for allocation was that commonly used by medical schools where the demand for internships exceeded their availability. In providing supernumerary posts to unsuccessful candidates, the respondent (in common with other teaching hospitals) was providing a service to graduates who would not otherwise qualify for full registration under the Medical Practitioners Act 1978. They contend that the continuance of this arrangement is necessary to ensure that all graduates of Irish medical schools have an opportunity to obtain full registration. It was submitted that if the system has any indirect discriminatory affect (which is denied) the benefit which it brings to medical graduates who cannot obtain a funded intern post is a countervailing factor which justifies its continuance.
Summary of Complainant’s Submission.
The complainant told the Court that having graduated from Trinity College, he failed to secure a fully paid intern post but was instead offered a supernumerary post. The practical effect of this form of appointment was that he was required to work without two components of pay to which those occupying paid posts are entitled, namely, a basic salary and living out allowance.
The complainant submitted that in practice the vast majority of those appointed to supernumerary posts were non-nationals. The complainant pointed out that he was engaged in exactly the same range of duties as his colleagues working in funded posts. He contended that this use of supernumerary posts is an abuse which facilitates discriminatory treatment of non-nationals in contravention of the Act.
The complainant further submitted that an Irish national who ranked 82nd in the examination was allocated a paid post whereas he, having secured 81st place, was confined to a supernumerary post.
Finally, the complainant submitted that the work permit of the Department of Enterprise Trade and Employment cannot take precedence over the provisions of the Act which render unlawful discrimination on grounds of race or nationality such as that alleged in the instant case.
Conclusions of the Court.
In his original application to the Director of Equality Investigations the complainant claimed to have been denied access to a funded intern post on grounds of his race or nationality, contrary to Section 8 of the Act. This aspect of his complaint was presented out of time and on that basis the Director rejected it. That decision of the Director was not appealed. Hence, the Court cannot be concerned with the question of whether or not the complainant should have been allocated one of the 77 funded intern posts available in June 2000. Yet, much of the argument advanced by the parties in the course of the hearing before the Equality Officer and again in the course of this appeal are relevant only to the question of the complainant’s right to access employment without discrimination as provided for by Section 8 of the Act.
The sole issue which the Court is required to determine is whether the complainant, while working in a supernumerary intern post is entitled to equal pay with other Doctors of different nationality working in a funded intern post. Any rights which the complainant may have in that regard are derived solely from Section 29 of the Act, which provides as follows:
29.—(1) It shall be a term of the contract under which C is employed that,
subject to this Act, C shall at any time be entitled to the same rate of
remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
(2) For the purposes of subsection (1), in relation to a particular time, a
relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.
(3) For the purposes of this Part, where D's employer is an
associated employer of C's employer, C and D shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.
(4) Where a term of a contract of employment or a criterion applied to
employees (including C and D)—
(a) applies to all employees of a particular employer or to a particular
class of such employees (including C and D),
(b) is such that the remuneration of those who fulfil the term or
criterion is different from that of those who do not,
(c) is such that the proportion of employees who can fulfil the term or
criterion is substantially smaller in the case of the employees having the same relevant characteristic as C when compared with the employees having the same relevant characteristic as D, and
(d) cannot be justified as being reasonable in all the circumstances of
then, for the purposes of subsection (1), C and D shall each be treated as
fulfilling or, as the case may be, as not fulfilling the term or criterion,
whichever results in the higher remuneration.
(5) Subject to subsection (4), nothing in this Part shall prevent an employer
from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.
Section 29(1) – Direct Discrimination.
The material facts of this case are not seriously in dispute. It is accepted by the respondent that the complainant was employed under a contract of employment while undergoing his internship. It is further accepted that he was engaged in like work with that of the nominated comparators. The comparators who received full pay were of a different nationality to the complainant. However, in order to succeed in his claim of discrimination the complainant must establish, as a matter of probability, that the difference in pay is attributable to his race or nationality.
On the facts of this case it is clear that the reason why the complainant was not paid the same remuneration as the comparators was because he occupied a supernumerary post, whereas the comparators occupied a funded post. It is common case that if a citizen of an EEA country were to be appointed to a supernumerary post they would be treated in exactly the same way as the complainant. Thus, the difference in treatment arose from a criterion which is race neutral on its face and is a ground other than a discriminatory ground within the meaning of Section 29(5) of the Act. Accordingly, it cannot be held that the complainant suffered direct discrimination in terms of Section 29(1) of the Act.
That, however, does not dispose of the matter. Section 29(5) is expressly subject to section 29(4) of the Act and the Court must consider if there was indirect discrimination in terms of that subsection.
Section 29(4) – Indirect Discrimination.
This subsection appears to incorporate in statutory form the test for identifying the presence of indirect discrimination formulated by the ECJin Bilka-Kaufhaus GmbH v Karin Weber von Hartz ECR 1607. However, the Solicitor for the respondent submitted that, since the rights at issue in the instant case are derived solely from domestic law, the jurisprudence of the ECJ in interpreting Article 141 (ex 119) of the Treaty are not authoritative.
The Court accepts that the decisions of the European Court of Justice concerning the rights at issue in this case are not binding authority at this time. They may however be persuasive and of assistance to the Court in reaching its conclusions.
The plain language of the subsection indicates that, in cases involving its application, the Court should look at the practical effect, over a sufficient period of time, of a term or criterion for determining pay as between those engaged in like work. If it is established, by reliable statistics, that the term or criteria has resulted in significantly more persons having the same relevant characteristics as the complainant receiving lower pay than persons having the same relevant characteristics as the comparators, the subsection is applicable.
In the instant case the relevant characteristic of the complainant and the comparators is their nationality. In that regard it is noted that at Section 28(1)(g) of the Act, the ground of race is expressed to include race, colour, nationality or ethnic or national origins or any combination of those factors. In the Court’s view this definition is sufficiently broad to bring citizenship of an EEA country or non-citizenship of such countries within the scope of the race ground for the purpose of Section 28 of the Act.
Profile of Funded / Supernumerary Posts.
The respondent accepts that the funded posts are predominantly allocated to EEA citizens. Indeed the system of allocation is designed to bring about that result. Following the hearing of the case the Court requested the respondent to provide statistics relating to the filling of funded intern posts and supernumerary posts in the five years up to the year 2000. What emerged from the figures provided was that all graduates of EEA nationality were appointed to funded posts in the years in question and that only non-EEA nationals were appointed to supernumerary posts.
The criterion for paying full remuneration to an intern doctor is occupancy of a funded post. It is clear beyond argument that the proportion of intern doctors who can fulfil that criterion is substantially smaller in the case of non-EEA nationals, such as the complainant, than in the case of citizens of EEA countries. On this finding the criterion in question is captured by Section 29(4)(c) and is discriminatory if it cannot be justified as being reasonable in all the circumstances of the case.
The Solicitor for the respondent submitted that the standard of justification necessary to save an otherwise discriminatory term or criterion, under Section 29(4)(d), is lower than that of objective justification required by Section 19(4)(d), in a case involving discrimination on the gender ground. The Court accepts that by using different terminology in both sections the Oireachtas must have intended that a lower standard of justification would be required in cases of indirect discrimination on the non-gender grounds than that derived from the jurisprudence of the ECJ in cases involving gender equality. Nonetheless, the standard of justification required cannot be so low as to render the section ineffective or nugatory.
The Act gives no guidance as to what factors are to be taken into account in applying this provision. It is thus a question of fact to be decided by the Court in each case by applying ordinary objective standards of reasonableness to the factors put forward by the respondent as justification for the term or criterion in question. Further, it appears to the Court that the dominant purpose of the factors relied upon must relate to an objective which the employer is required to pursue or is reasonably entitled to pursue and that they go no further that is reasonably necessary for the attainment of the objective.
The Work Permit Scheme
In the instant case the respondent told the Court that a work permit could not be obtained for the complainant in respect of a funded post where a suitable candidate of EEA nationality was available. They further contend that the work permit ultimately issued in respect of the complainant was specifically for a supernumerary post and by necessary implication this meant that he could not occupy a paid post. The respondent submitted that these factors justified the different treatment of the complainant relative to that of graduates who did not require a work permit. They referred the Court to the decision of the Court of Appeal for England and Wales in the case ofDhatt v McDonalds Hamburgers Ltd [1991) IRLR 130as authority for this proposition.
Here, a case was taken by an Indian national under the relevant provisions of the Race Relations Act, 1976. The complainant in that case had indefinite leave to enter the UK under the Immigration Act, 1971. This meant that he was not subject to any restrictions with regard to employment and did not need a work permit to work in the UK. Having applied for employment with the respondent he was asked to produce evidence of his right to work in the UK. He claimed he was thereby discriminated against since a similar request was not made to prospective employees of British nationalities or EEC citizens.
The Court of Appeal held that for the purpose of making a comparison between the treatment of a person of a particular racial group with that of a person not of that group the relevant circumstances of the complainant must be the same, or not materially different to those of the comparator. In holding that the complainant was not discriminated against, the Court accepted that Mr Dhatt’s citizenship meant that his relevant circumstances were not the same as those of a British or EU citizen. It held that although discrimination on grounds of nationality was discrimination on race grounds, the fact that statute (in the form of the Immigration Act 1971) imposed controls through the work permit system made such action permissible.
The dicta in this case might well be of persuasive authority if the point at issue in this case was the complainant’s right to enter employment, which it is not. This is a claim for equal pay and the Court does not accept that the case provides any authority for the proposition that a person in respect of whom a work permit has issued can be expected to work for lower pay than a person for whom a work permit is not required.
The respondent told the Court that in applying for a work permit in respect of the complainant it had specified that the only remuneration payable would be in respect of overtime and on-call duty. They suggested that as the work permit was granted on foot of this information, the specified terms could not be changed within the relevant rules operated by the Department of Enterprise Trade and Employment.
The Court cannot accept that there is any factual basis for the respondent’s understanding on this point. The work permit issued by the Department of Enterprise, Trade and Employment in respect of a non-national does not and cannot impose any restriction on the level of remuneration payable to an employee to whom the work permit relates. Apart from the clear obligation on an employer to observe the equal pay obligation imposed by Section 29 of the Act, there is also the obligation to pay the statutory minimum wage pursuant to the National Minimum Wage Act, 2000. The Court cannot accept that the work permit scheme could be intended to offset or supplant the clear obligations of an employer under this legislation.
In the Court’s view the work permit scheme has no relevance to the issues arising in this case and cannot be relied upon as reasonable justification for paying the complainant less remuneration than the comparators.
Overall Benefits of Supernumerary Posts.
The second point relied upon by the respondent in justification of the impugned arrangements is that it allows graduates who fail to obtain a funded internship to obtain full registration with the Medical Council. This, it is submitted, is a countervailing factor which offsets any incidental discriminatory effect which the arrangement may have.
On this point the respondent submitted that the number of funded posts available to graduates of Trinity College at St Jame's and at Tallaght Hospitals will always be limited by budgetary constraints. They say that if the decision of the Equality Officer is upheld the practice of providing supernumerary posts will be discontinued. This, they say, will impact adversely on graduates of non-EEA nationality and those with lower academic achievements. They will be unable to pursue their post graduate training in the teaching hospital of their choice and may be unable to attain full registration if they cannot obtain a funded internship elsewhere. They further argued that the complainant was not obliged to undertake an internship in St Jame's Hospital but wished to do so because of its standing and prestige. They say that he could have applied for a funded post in another hospital but chose not to do so.
While there is a certain cogency in this argument the Court cannot accept that it goes far enough to justify a requirement for the complainant to work without pay in circumstances where doctors of a different nationality are paid.
Firstly, the services provided to the hospital and its patients by doctors in supernumerary posts are exactly the same as those provided by their colleagues in funded posts. It could not be seriously suggested that those services could be dispensed with without affecting the quality and level of medical services which the hospital can provide. The Court cannot speculate as to what the response might be in terms of future funding for intern training in the event of the services of unpaid graduates being no longer available.
Secondly, the substance of the respondent’s argument is that if the financial resources necessary to meet its obligation to equal pay are not provided this justifies the maintenance of unequal pay. While this argument again appears to go to the question of access to rather than the actual conditions of employment, it would appear to the Court that the creation of supernumerary posts in itself would not be objectionable, (subject of course to any statutory requirements under the National Minimum Wage Act, 2000) provided that the criteria for filling these posts would not be discriminatory.
In the Court’s view the fact that funding for equal pay is not provided could not amount to reasonable justification for the payment of unequal pay. Were it to be otherwise every claim for equal pay under Section 29 of the Act could be met with the defence that the employer had not made sufficient financial provision to cover his/her obligations. If that were to be accepted as sufficient to relieve the employer of the obligations imposed by Section 29 the Section would be rendered ineffective or nugatory.
Accordingly, the Court does not accept that the impugned criteria can be justified as being reasonable in all the circumstances.
On the reasoning set out above the Court finds as follows:
1. The complainant and the comparators are engaged in like work.
2. The criterion used by the respondent in determining if certain elements of remuneration are
payable to intern doctors is whether the post which they occupy is designated a funded post as
opposed to a supernumerary post. That criterion applies to all intern doctors and is
non-discriminatory on its face.
3. The criterion is such that the proportion of employees who can fulfil it is substantially smaller in
the case of citizens of non-EEA States, such as the complainant, when compared to citizens of
EEA States, such as the comparators.
4. The criterion cannot be justified as being reasonable in all the circumstances of the case.
Consequently, in accordance with Section 29(4), the complainant must be deemed, for the purpose of Section 29(1), to have fulfilled the criterion for receiving higher pay, namely that he occupied a funded post between 10th July 2000 and 31st March 2001. He is, therefore, entitled to the same rate of remuneration as other doctors who occupied funded posts during this period.
It follows that the complainant is entitled to the redress awarded by the Equality Officer.
The decision of the Equality Officer is affirmed and the appeal is disallowed.
In the course of the hearing the representatives of the respondent expressed their concern at the imputation in press coverage of the case that they had deliberately discriminated against a non-national employee. They told the Court that the Hospital employs a significant number of staff of different nationalities and have always been fastidious to ensure that all of its staff are treated equally regardless of their national origin. They regarded the imputation of discrimination as particularly unfair and damaging.
The Court has no hesitation in accepting that the management of the Hospital did not design the system of allocating internships and operated the system as they found it. The Court also fully accepts that the Hospital management acted at all times without discriminatory intent toward the complainant or any other employee. However motivation is not a decisive factor and the accepted bona-fides of the respondent is not an allowable defence which could defeat the complainant’s legal entitlement to equal pay under Section 29 of the Act.
Signed on behalf of the Labour Court
22nd July, 2002______________________
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.