EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2018-020
Health Service Executive
Arthur Cox Solicitors)
File reference: EE/2013/243
Date of issue: 19th October 2018
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.
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.
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 the respondent.
3.3 The respondent submitted that its statistical information showed that while four men were paid increments, this was statistically irrelevant when compared to the wider group of men and women who were not paid increments. The four men fell within the “fortuitous” category identified by the Court of Justice of the European Union in Enderby v. Frenchay Health Authority (C-127/92). The respondent also submitted that the complainant has not met the test set out in Enderby. First, the complainant could not identify a particular group who had been disadvantaged on gender grounds as outlined in a statistical table provided in their written submissions. Second, there was no particular group, on gender grounds, that had been advantaged as so many men did not receive increments. The complainant’s selection of comparators was too narrow and artificial. It did not meet the test for a valid comparator laid out by the High Court in Kenny v. Department of Justice, Equality and Law Reform and others  IEHC 11, subsequently followed by the Equality Tribunal in O’Dwyer v. HSE West (DEC-E2015-010).
3.4 On the second day of hearing, the respondent outlined that Circular 32/1959 applied to the payment of incremental credit to its staff. HSE Corporate did not pay increments to staff in acting up positions. 15 male employees had not received increments up to 2013 and 14 female employees had also not received increments. It did not know how many had sought payment of incremental credit. There was no record of applications made and the only record was of decisions made. One woman was paid increments; a Grade 5, acting up to a Grade 7 role and later placed on the sixth point on the Grade 8 scale.
3.5 One named colleague of the complainant was granted increments. Another colleague had undertaken a difficult and cumbersome role in high-profile negotiations. He had played a key role in ensuring compliance with working time in the health sector. He was therefore entitled to differential treatment and the payment of increments was objectively justified. There had been no mechanism or evaluation scheme to capture such exceptional performance. A previous evaluation scheme had been revoked in 2009. It was submitted that the deviation in practice in paying increments could be explained by the size of the respondent organisation.
3.6 The respondent outlined that the issue raised by the complainant was part of a wider industrial relations issue. Two males and one female had been awarded increments. There had been 70 or so cases taken regarding this issue and employees of both genders felt aggrieved. One HSE Corporate male had been successful in his application. In closing submissions, it was submitted that this complaint related to an industrial relations matter and the employment equality complaint was not well founded. While there was inconsistency in the payment of increments to staff acting up, any inconsistency was not related to gender. Both males and females received increments. The complainant had been treated in the same way as 15 other males and 14 other females in HSE Corporate in not been paid increments.
Findings and reasoning:
4.1 In the complaint form submitted on the 14th May 2013, the complainant outlines that this is a complaint of gender discrimination, including equal pay. The narrative set out in the complaint form states “I refer to my current role as acting Grade VIII in the National Recruitment Service, HSE. I have been in this post since July 2006 and I am in receipt of the minimum point on the Grade VIII salary scale since that time. Given that full incremental credit has been applied to other senior male managers in an acting role, in September 2012, within the HR Directorate and elsewhere, in the interest of fairness and equity I formally requested that full incremental credit be applied to me. This has been refused by the National Director of HR, who has already sanctioned this credit for the other male members of staff.” The complaint form cites two male comparators.
4.2 Section 6(1) of the Employment Equality Act provides “… discrimination shall be taken to occur where a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which (i) exists, (ii) existed, but no longer exists…” In relation to gender discrimination, section 6(2) provides “as between any 2 persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”).
4.3 Section 19 provides for equal remuneration on the gender ground. It provides: “(1) 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. (2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time. (3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B 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) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer. (b) Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary. (c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B. (5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.”
4.4 The complainant must meet the burden of proof provided in section 85A of the Employment Equality Acts. She must establish facts from which it can be presumed that discrimination has taken place. Addressing the burden of proof in in Melbury Developments Ltd v. Valpeters  E.L.R. 64, at page 68, the Labour Court held as follows:
“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”
4.5 I appreciate that this events in this case took place against the background of an extended public sector moratorium that directly affected the complainant and her colleagues. Staff such as the complainant acted up for many years. In their roles in the HR Directorate, they also faced the challenge of working within the confines of the moratorium. Many of these issues were addressed by the Haddington Road agreement and a process of regularisation. This case relates to the complainant’s application for incremental credit prior to the enactment of the Haddington Road Agreement.
4.6 The complaint of discrimination relates to the payment of incremental credit to certain male colleagues while acting up. The complainant was refused payment of increments for the time she was also acting up. The focus of the complaint is the payment of incremental credit to respondent employees. The male colleagues identified by the complainant were not at her grade and nor were they doing like work. According to the complainant, the payment of increments was “against policy” and yet they were paid to certain staff. There is no document that sets out when increments could be applied to staff acting up. This was applied in an ad hoc fashion.
4.7 The respondent argued that the complainant has not selected valid comparators, saying that she has not established that there is a disadvantaged group consisting mainly of women, and nor is there an advantaged group consisting mainly of men. It refers to statistical information of the number of men who were not paid increments when acting up both in HSE Corporate and the wider HSE. The respondent referred to tendering evidence in relation to male staff in HSE Corporate who were refused their application for incremental credit while acting up (none was available at the hearing). The respondent referred to data showing the number of women who received increments in the wider HSE.
4.8 Having considered the evidence and submissions, I find that the complainant has establisheda prima facie of discrimination. She pointed to named colleagues who workin the same business unit of the respondent and who received increments when she did not. She looked to be paid increments and was unsuccessful. No reasoned decision was provided to the complainant. There were no published or objective criteria to determine who was paid increments when in an acting up role, and nor was there a clear process to deal with applications. Taking these factors together, they are facts of such significance to establish the presumption of discrimination.
4.9 In assessing whether the respondent has rebutted the prima facie case, I note that it has not provided information about either disappointed female or male staff members who sought the incremental credit. The only staff member who applied and was refused incremental credit was the complainant, a woman. Those in the complainant’s Department who were paid were men. There was no objective or transparent way of establishing who should be paid their increment and who should not. It follows that the respondent has not discharged the prima facie case. In assessing redress, I note that this matter was addressed on a collective basis by a national agreement. I also note the period of time during which the complainant sought an increment. I also note that even had objective criteria been laid out, the complainant may not have qualified. Taking these factors together, I award redress of €5,000.
4.10 For completeness, I find that the complainant has not established a prima facie case of discrimination in respect of the equal pay element of her claim. I reach this finding as one comparator was not doing like work; he was a Grade 8 acting up to a higher role. The complainant did not present evidence of her doing like work with the other comparator, despite this comparator also acting up to a Grade 8 role.
5.1 I have concluded my investigation of this complaint. Based on the foregoing, I find, pursuant to Section 79 of the Employment Equality Act, that the complainant was the subject of discriminatory treatment on grounds of gender.
5.2 In accordance with Section 82 of the Act, I order the respondent pay to the complainant €5,000 in compensation. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).
5.3 I find that the complainant has not established a prima facie case of equal pay on the gender ground and this complaint fails.
Adjudication Officer / Equality Officer
19th October, 2018