Hoey (Represented by the Irish Nurses' Organisation) AND Northern Area Health Board, Dublin (Represented by the Health Services Employers' Agency)
1.1 This dispute concerns a claim by Ms Marie Hoey, employed as an Assistant Director of Nursing at James Connolly Memorial Hospital, that she is entitled to the same rate of remuneration as that paid to three named male comparators, employed as Assistant Directors of Nursing - Mental Health at St Brendan's Psychiatric Hospital, in accordance with the provisions of section 19 (1) of the Employment Equality Act, 1998.
1.2 The Irish Nurses' Organisation (INO), referred a claim on behalf of the complainant to the Director of Equality Investigations on 31 January 2003 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 4 April 2003 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 23 April 2004.
2. THE COMPLAINT
2.1 The complainant's case was referred under the provisions of section 19 (1) of the Act which provides It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer. Section 18 states that "A" and "B" represent two persons of the opposite sex so that, where "A" is a woman, "B" is a man, and vice versa.
2.2 Section 19 (5) of the Act provides that:
...nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.
2.3 The respondent conceded like work in respect of the complainant and the comparators, and I therefore proceeded on the basis of investigating whether the different rates of remuneration were justified on grounds other than gender.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 While acknowledging that the complainant and her comparators were engaged in like work, the respondent argued that there were objective nondiscriminatory grounds for the salary paid to the comparators.
3.2 The respondent said that James Connolly Memorial Hospital, where the complainant was employed, was a general hospital providing accident and emergency, medical, surgical, care of the elderly and psychiatric services. The complainant was appointed to the position of Assistant Director of Nursing (formerly Assistant Matron) in the hospital in 1997. She had responsibility for several units in the hospital, among them two units which were registered under the Mental Treatment Act 1945 for the reception of temporary and voluntary psychiatric patients.
3.3 St Brendan's Hospital, where the three comparators were employed as Assistant Directors of Nursing - Mental Health (formerly Assistant Chief Nursing Officers, or ACNOs), was a psychiatric hospital providing long term and continuing care for people with high levels of psychiatric and social disability, specialised services for the homeless and mentally ill, and specialised rehabilitation services for patients with high levels of psychiatric needs. The hospital was registered under the Mental Treatment Act 1945.
3.4 The respondent said that separate salary agreements traditionally applied to general and psychiatric nursing. General hospitals were "banded" according to activity levels, nursing staff levels, budgets and accident and emergency activity. For the purpose of the salary of Assistant Director of Nursing hospitals were either Band 1 or Non-Band 1. James Connolly Memorial Hospital is a Non-Band 1 hospital, and, at the time of the referral of the claim, the complainant was paid on an eight-point salary scale ranging from
€40,064 to €48,245.
3.5 Salary scales paid to nurse management in the psychiatric services were negotiated nationally between health service management and the representative trade unions. The respondent said they applied regardless of the gender of the staff involved. At the time of the referral of the claim, the comparators were paid on a seven-point scale ranging from €43,250 to €53,251.
3.6 The respondent contended that the complainant had been appointed to a general hospital position, and she was paid in accordance with the salary scale for the position. A candidate for the post was required to be registered in the General Division of the Register of Nurses kept by An Bord Altranais or entitled to be so registered, to have experience of nursing management and have undertaken management training, and to have satisfactory nursing experience. Although the complainant held a psychiatric nursing qualification, it was not an essential criterion for the post. The comparators were obliged to be registered in the Psychiatric Nurses' Division of the Register of Nurses kept by An Bord Altranais or entitled to be so registered.
3.7 The respondent said that a new psychiatric unit had been built at James Connolly Memorial Hospital and it intended to transfer 25 beds from St Brendan's Psychiatric Hospital to this new unit. The respondent deemed it appropriate to appoint a full-time Assistant Director of Nursing - Mental Health to manage the new unit. The complainant was appointed to this new post with effect from March 2003. While the new unit had not yet officially opened, she had been assimilated to the appropriate salary scale from March 2003 in recognition of her contribution to the proposed new operational arrangements
and her assistance with ongoing negotiations.
3.8 The respondent concluded that it operated within the confines of nationally negotiated pay rates for all nursing posts. While the complainant's principal duties related to general nursing, she was paid on the Assistant Director of Nursing Non-Band 1 salary scale. Following the decision to transfer the 25 beds to the new unit at James Connolly Memorial Hospital, her new post fell to be designated as a mental health post and she was consequently paid on the Assistant Director of Nursing - Mental Health salary scale with effect from March 2003. The respondent said that gender was never a factor in determining the complainant's salary.
4. SUMMARY OF THE COMPLAINANT'S CASE
4.1 The complainant disputed the respondent's contention that her principal duties related to general nursing. She said she was responsible for three units designated under the Mental Treatment Act, encompassing 188 beds which she said would exceed the number under the responsibility of any of the comparators. She provided a copy of a internal document dated 10 August 1988 regarding the creation of her post, which made it clear that the post was to be filled by an ACNO who would report directly to the Matron and liaise with the Chief Nursing Officer. For convenience the person holding the post was to be designated Assistant Matron. In any event, the complainant said there was no relevance in the point of which were her principal duties since the respondent did not dispute like work.
4.2 The complainant said that a substantial body of European case law has been developed around the question of equal pay. She said that, in line with the case law, the burden of proof shifts to the employer in cases where there is a lack of transparency for the reasons to justify the pay difference between two workers engaged in like work. Two decision of the European Court of Justice were particularly relevant in this regard.
4.3 The complainant referred first to the decision in the case of Handels- Og Kontorfunktionaerernes Forbund I Danmark v Dansk Arbejdverforening (Case 109/88 - known as Danfoss). In that case, surveys had shown that female employees were on average paid almost 7% less than male employees of the same grade. The Court pointed out that not to impose a burden on the employer to demonstrate a practice was non-discriminatory, in situations where the system was completely lacking in transparency, would be to deprive affected female employees of any effective means of enforcing the principle of equal pay. The complainant said that justifications must be clear, transparent and relevant to the actual work performed, and not conceptually vague or ambivalent in meaning. In this case, the complainant said that it was her view that the respondent's reliance on the designation of hospitals under the Mental Treatment Act as a reason to justify discriminatory rates of pay fell into the category of a conceptually vague or ambivalent concept which could not justify the difference in pay.
4.4 The complainant also referred to the decision in the case of Dr Pamela Enderby v Frenchay Health Authority and Secretary of State for Health (Case C-172/92). In that case, the Court ruled that an employer was required to demonstrate that a difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, was based on objectively justified factors unrelated to any discrimination on grounds of sex. The complainant said that of particular relevance was the Court's finding that the fact that the different rates of pay were arrived at by different collective bargaining processes, which taken separately had in themselves no discriminatory effect, was not sufficient objective justification for the difference in pay. She pointed out that a Department of Health and Children census of staff indicated that, in 2002, women filled some 97% of posts at Assistant Director of Nursing level. In psychiatric nursing women comprised in excess of 60% of the staff population, but the predominance of men in the senior management grades of Assistant Director of Nursing - Mental Health and Director of Nursing - Mental Health reversed the 60:40 ratio.
4.5 The complainant lodged a claim with the respondent on 8 June 2000, seeking both equal pay with the comparators and registration under section 65 of the Mental Treatment Act. Registration, which conferred more favourable superannuation benefits, was conceded by the respondent in October 2001 and was given retrospective effect to her date of appointment on 15 September 1997. The complainant said that she was also seeking equal pay with effect from her date of appointment. She claimed that the three year rule regarding retrospection in the 1998 Act made her eligible for such retrospection.
5. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
5.2 It is clear from the case law, in particular the European Court of Justice decisions in Danfoss and Enderby, that once it is established that two jobs are ofequal value the employer must demonstrate that the difference in pay can be objectively justified. In this claim, the respondent has conceded like work between the complainant and the comparators, and it must therefore bear the burden of proof that the difference in pay is not connected to gender.
5.3 The respondent argued that the different salaries were a result of the fact that the complainant was appointed to a general nursing post while the comparators were appointed to psychiatric posts. It said that the relevant salary scales were nationally negotiated and applied regardless of the gender of the person involved.
5.4 The fact that the complainant was appointed to a general nursing post cannot justify the difference in salary, since like work was conceded by the respondent. The Labour Court, in Dublin Institute of Technology and McEvoy (EDA032), said "...it is the actual duties performed which are relevant and not the qualifications held by the respective parties." In any case, the complainant holds the relevant psychiatric qualification.
5.5 With regard to the fact that the salary scales were nationally negotiated without reference to gender, the European Court of Justice in Enderby noted than "If the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as sufficient justification for the difference in pay, he could, as the German Government pointed out, easily circumvent the principle of equal pay by using separate bargaining processes." I am satisfied that the respondent has failed to demonstrate that the difference in pay between the complainant and the comparators is objectively justified.
5.6 The complainant argued that she should be awarded equal pay with effect from the date of her appointment to the post (15 September 1997) since the 1998 Act made provision for arrears of remuneration to be awarded for a period of three years prior to referral of a claim. However, the relevant provision in section 82 reads:
(1) Subject to this section, the types of redress for which a decision of the Director under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:
(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of the employment as begins not more than 3 years before the date of referral under section 77 (1) as led to the decision;
(b) an order for equal remuneration from the date referred to in paragraph (a)...
5.7 Section 77 (1) provides that a person seeking redress in terms of the 1998 Act may refer the case to the Director. It seems to me quite clear that the date of referral mentioned in section 82 (1) is the date of referral of the case to the Director, and cannot be read to mean the date the claim was lodged with the respondent. The redress open to me to award, therefore, is an order for compensation in the form of arrears of remuneration for a period of three years prior to the referral of the claim on 31 January 2003 and/or an order for equal remuneration from 31 January 2003.
5.8 In the event, the complainant was assimilated onto the Assistant Director of Nursing - Mental Health scale in March 2003. I am satisfied that the appropriate redress to be awarded in this claim is an order for arrears of remuneration for the period 1 February 2000 to the assimilation date in March 2003.
6.1 Based on the foregoing, I find that the Northern Area Health Board discriminated against Ms Marie Hoey on the ground of gender in relation to her pay, in terms of section 19 of the Employment Equality Act, 1998.
6.2 I hereby order that she be placed on the salary scale of Assistant Director of Nursing-Mental Health with effect from 1 February 2000.
6 December 2004