THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
(represented by Martin Corbett, Services Industrial Professional and Technical Union)
Health Services Executive South
(represented by Maria Daly, Employee Relations Manager)
File Number: EE/2012/254
Date issued 7th April 2015
Keywords: Employment Equality Acts, Gender, Access to Promotion, Training, Conditions of Employment, Indirect discrimination, No prima facie case
1.1 The case concerns a complaint by Sabrina O’Leary that HSE South discriminated against her on the grounds of gender regarding access to promotion to Emergency Medical Controller (EMC), training and conditions of employment contrary to Section 8(1) (b) (c) and (d) of the Employment Equality Acts 1998-2011 [hereinafter referred to as ‘the Acts’].
1.2 The complainant referred a complaint under the Act to the Director of the Equality Tribunal on 20th April 2012. On 5th June 2014 in accordance with his powers under Section 75 of the Act, the Director delegated this case to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and as required by Section 79(1) of the Act a joint hearing commenced on 12th June 2014.
Summary of the complainant’s case
2.1 The complainant commenced employment with the respondent as a ward assistant in September 1999. She submits that she always wanted to work as a paramedic and was successful in a competition to become one. She has been employed as such in the Ambulance Service since 2001. She submits that she has completed all mandatory training. She was also seconded to the National Ambulance Service for a year as a Training Officer.
2.2 In May 2009, the complainant applied for the position of Emergency Medical Controller. She was successful in the aptitude tests and was called for interview in July2009. The interview went well. She was delighted to be subsequently empanelled – she came first on the Cork panel, first on the Kerry panel and first on the Limerick panel. When these regional panels were amalgamated, she was third on the national panel. She was offered positions in Donegal and Dublin but she submits that she could not relocate so far away from her family. The complainant submits that it was her understanding that she would be trained on the job. This is because the job specification said ‘ the person(s) employed will receive full training and will work with a team of skilled and dedicated personnel on a shift work basis to ensure appropriate staffing is provided on a 24 hour/365 day basis’. After being placed on the panel, she was regularly told that training by local personnel would have to be done in her own time. In December 2011, an Emergency Medical Controller retired and a male was placed in his position. There was not an interview for this role.
2.3 The complainant submits that she was next on the national panel and therefore she should have been appointed to this role. Following raising a grievance the respondent acknowledged that Ms O’Leary was 3rd on the panel but the first two would have to be offered the position first. When the complainant contacted the national recruitment centre, they were not aware that there was a vacancy in Cork! She submits that the male comparator was given the position even though he was not on the active recruitment panel. She submits that there was a female (apart from the complainant) with more experience than the male comparator and she did not receive the Acting Up position. The respondent advertised for relief emergency controllers in May 2012 despite Ms O’Leary being on a panel for same. The male comparator in the Acting Capacity retained the position.
2.4 The complainant also submits that this was indirectly discriminatory. Indirect discrimination is defined in Section 22 of the Acts:
—(1) (a) Indirect discrimination occurs where an apparently
neutral provision puts persons of a particular gender
(being As or Bs) at a particular disadvantage in
respect of any matter other than remuneration compared
with other employees of their employer.
(b) Where paragraph (a) applies, the employer shall be
treated for the purposes of this Act as discriminating
against each of the persons referred to (including A
or B), unless the provision is objectively justified by
a legitimate aim and the means of achieving that aim
are appropriate and necessary.
In June 2013, the control centre in Cork was shut down and the complainant submits that the people in it retained their grade and salary and were redeployed. Ms O’Leary submits that she missed this opportunity to become an Emergency Medical Controller as family circumstances do not allow her to move out of Cork.
The complainant submits that the continued refusal to allow her finish her Advanced Paramedic training is further discrimination on the gender ground.
Summary of the respondent’s case
3.1 The respondent utterly refutes any allegation of discrimination on the ground of gender.
3.2 Regarding access to training, in the context of the ongoing professionalization of the Ambulance Services provided by the HSE, ambulance personnel are required to retain their skills. Ms O’Leary was proved access to all such mandatory training relevant to her contract of employment as an Emergency Medical Technician. In addition, Ms O’Leary had applied for training as an Advanced Paramedic. She commenced this training on two occasions in 2007 and again in 2008. Her attendance was infrequent both times. Because of the cost of the course, it has been refused to her for the third time. The approximate cost associated with such training is €120,000 per participant. She was granted a secondment to the role of Ambulance officer (Training and Development) in the National Ambulance Training Board Dublin for a year (Grade VI). She received an increase in her remuneration and was facilitated with the continuation of her cardiac allowance. In relation to the ‘on the job’ training in the control room, the HSE submit that they are blessed with staff who are very dedicated to their work. The custom and practice has been that people interested in becoming a controller learn by ‘sitting by Nelly’ to use the colloquial phrase i.e. people sit in the control room on their own time (on a supernumerary basis) to learn how it works. This option remained available to Ms O’Leary at all times. It is only following a significant period of this on the job training that personnel are offered an opportunity to undergo the Advanced Medical Dispatch Priority Dispatch System [AMPDMS] training which is the system the Ambulance Service use to take and prioritise calls.
3.3 The Ambulance Service in HSE South (Cork and Kerry) has 18 stations with a front-line staff of approximately 200 Whole-time Equivalents to serve a population of 745,000. The male: female ration in Cork is 4.1:1 (123:30). The emergency control room is similar 4:1 i.e. eight men and two women. Like many areas of the public sector it has undergone significant change – the HIQA standards for emergency response times, phasing out of on-call allowances and centralisation of the control and command centres. There will only be two control centres in the country. That meant that the Cork control centre closed in May 2013.
3.4 The panel for which Ms O’Leary applied for expired on 18th February 2013. Ms O’Leary was notified of this and it was suggested, by letter including the application form, that she applies for the new national recruitment campaign for Emergency Medical Dispatcher (new name for Emergency Medical Controller).
3.5 In 2012, following the retirement of a staff member in the Cork control centre, the HSE were granted sanction to fill this critical post temporarily. It was filled based on the 2010 HSE Circular Policy on Acting Up in a Higher Capacity which states:
The employee who is selected for the acting up position must have all the competencies, qualifications, experience and if necessary the appropriate registration, to enable them to carry out the acting up role effectively.
Acting up appointments which are short-term i.e. for 3 months or less or which arise at short notice should be filled in accordance with the principles of the Code of Practice for Atypical Appointment in the Civil and Certain Public Bodies i.e. fairness, merit and transparency. While these vacancies may be filled locally without going through the formal recruitment process, consideration must be given to the widest possible pool of potential qualified candidates. The selection criteria must be based on the essential requirements of the post.
3.6 The respondent submits that they identified seven HSE South Ambulance staff from the EMC relief panel that were trained, had their Advanced Medical Dispatch Priority Dispatch System [AMPDMS] licence and had experience working as an EMC as potential candidates to fill the acting role. These staff members had been providing relief cover in the Cork control centre for period of off-duty, annual leave etc. on a rotational basis. These seven people were invited to express an interest. Two did so – a man and a woman both of whom had over four years of experience as a full-time controller. Both names were put into a hat and the person selected happened to be a man. The respondent submits that both people agreed to this selection process in advance. He was appointed on a temporary basis from 2nd January 2012. For a long period of fulfilling this role, he received no additional allowance. He continued to hold this post until the control centre in Cork closed on 16th May 2013.
3.6 The complainant raised a grievance, as she is fully entitled to do, and the respondent met with her and her SIPTU representative on 27th February 2012 and explained the difference between the relief panel and the national panel. The respondent submits that the purpose of the national panel was to fill long-term vacancies while the purpose of the relief panel was to address relief requirements that may arise from time to time. They suggested that she upskill by sitting in the control room on a supernumerary basis. Following this, she did sit in the Control room to enhance her skills in that area. She was facilitated on 16 occasions between 2nd July 2012 and 26th March 2013.
3.7 The respondent admits that it did advertise for relief personnel in May 2012. They submit that was because initially they thought the control centre would be closing in May 2012. When it was to remain open until May 2013, they advertised the position. Preference was given to people who had a month’s experience sitting in the control room and be available to go on the next AMPDMS course. The person already acting up retained the position until May 2013. He reverted to his previous position when the control centre closed.
3.8 Regarding the complainant’s contention that advertising for relief EMCs was indirectly discriminatory when she was next on the permanent panel, HSE refutes this allegation. The respondent reminds the Tribunal that this occurred during one of the worst recessions to hit Ireland and during the resultant public sector moratorium. All vacancies could only be temporary as it was Government policy to close the control centre in Cork. Therefore the respondent submits that it was both appropriate and necessary (given the importance of the position) to appoint people (on an acting basis) who were already qualified and experienced.
3.9 The respondent is anxious to add that Ms O’Leary is a valued member of staff. From being a nurse’s aide in 1999, she has risen through the ranks in a relatively short period. They hope she will continue to have a long and successful career with the HSE.
Conclusions of the Equality Officer
Access to promotion – direct discrimination
4.1 Section 8 prohibits discrimination on any of the nine grounds specified in the Act in relation to promotion. In O’Higgins v UCD the Labour Court give a useful précis of what needs to be considered when looking at whether a promotion competition is tainted with discrimination:
‘1.It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination
2.If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.
3.It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts
4.In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.
5.The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result
6.A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.
7.Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
8.The court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution’.
There is clearly a difference between the permanent national panel to which the complainant was appointed following a competition and a local relief panel to cover short-term absences. Had the male comparator been made permanent as an EMC on the basis of being picked out of a hat when there was a national panel extant, it is likely this case would likely have taken a different turn. Had the other woman on the relief panel who expressed an interest in the EMC role and who had more experience than the male comparator taken a case, the result of the complaint may also have been different. However, both of these situations are counter-factual. As an obiter comment, I feel compelled to point out that picking names out of a hat for a coveted role falls far short of best practice in Human Resources Management. Neither candidate was brought to the hearing to give direct evidence. I find the respondent’s contention that both candidates (especially the loser) were content with this lottery system hard to believe.
4.2 The complainant and the male comparator were both aware that the Cork control centre was due to close. The deadline for closure was extended (as often happens) but the temporary vacancy that the male comparator filled was just that – a temporary vacancy. It was never a permanent vacancy. Therefore the complainant has not established a prima facie case of direct discrimination.
4.3 The complainant argues that neutral provision of appointing the Male comparator as EMC is indirectly discriminatory. However, I accept the respondent’s contention that there was a public sector moratorium, the male comparator was trained and experienced (while the complainant was not) and it was a post that had to be urgently filled. Therefore I find the respondent has objectively justified their approach to filling this position. Therefore, I do not find that the complainant was indirectly discriminated regarding access to promotion.
Access to training
4.4 The complainant is correct in saying that if she was appointed in a permanent capacity, she would receive full training. However, for short-term, urgent vacancies like this one, the respondent simply did not have the time or resources to train people up. I was both surprised and impressed at the altruism of at least seven people who sat in the control room in their own time (i.e. they were not being paid for it) before being sent on the AMPMDS course so they could be on the relief panel. People were only sent on the AMPDS course after watching how the control room works as the course would not make sense otherwise. I do not find this to be discriminatory. While I find not allowing Ms O’Leary to continue the Advanced Paramedic course to be harsh, no evidence has been adduced to me on how it was less favourable treatment on the ground of gender. Therefore, this strand of her case fails.
Conditions of employment
4.5 Apart from what was ventilated above, there was no evidence offered as to how the complainant was discriminated on the ground of gender in relation to her conditions of employment. Therefore Ms O’Leary has not established a prima facie case of discrimination in relation to her conditions of employment.
5.1 I have concluded my investigation of Sabrina O’Leary’s complaint and hereby make the following decision in accordance with Section 79(6) of the Acts:
(i) the respondent has not discriminated against the complainant regarding access to promotion (either directly or indirectly)
(ii) the respondent has not discriminated against the complainant regarding access to training on the ground of gender
(iii) the respondent has not discriminated against the complainant regarding conditions of employment on the ground of gender.
 EDA131 This determination by the Labour Court was upheld by Cooke J in the High Court  IEHC 508