ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00017246
A GP Assistant
A GP Practice
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 25/02/2019
Workplace Relations Commission Adjudication Officer: Orla Jones
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant submitted her complaint under Section 29(1) of the Employment Equality Acts, 1998 to 2015 on the 3rd of October 2018.
This case concerns a complaint on the grounds of age in relation to an entitlement to Equal Pay with two named comparators. The Complainant submits that she did not receive equal pay to that of two named comparators of different ages.
The complainant submits that she performs “like work”, in terms of Section 7 of the Employment Equality Acts, 1998 and 2015, with two named comparators of a different age, and that she is therefore entitled to the same rate of remuneration paid by the Respondent to the comparators in accordance with section Section 29(1) of the Acts which provides for equal pay on the non- gender grounds listed in section 6 (2) of the Act.
The complainant had also submitted a claim on the ground of disability, but this claim was withdrawn at the hearing.
I proceeded to a hearing of this matter 25th of February 2019, final correspondence was received on the 12th of April 2018.
Due to the sensitivities surrounding the details of this case I am exercising my discretion to anonymise this decision.
Summary of Complainant’s Case:
The complainant submits that
she was employed by the respondent in its GP practice since July 2011 as a GP Assistant. Dr. O was the owner of the practice at that time.
in April 2018 she inadvertently became aware that a younger female colleague was being paid more than her and where this comparator was carrying out the same work in the same role as the Complainant,
she was directly discriminated against on the grounds of age in relation to her pay in that she performs like work or work of equal value with two named comparators who are twenty years younger than the complainant,
Dr. D a named comparator in this claim joined the practice in February 2015 and
Dr. G the other named comparator joined the practice in September 2017.
Summary of Respondent’s Case:
The respondent submits that
the complainant at the commencement of her employment negotiated her own terms and conditions with the respondent and she has agreed some amendments to those terms in the intervening years including increases in her rate of pay,
there are grounds other than age for the difference in the hourly rate of pay between the complainant and the comparators,
the complainant also receives a number of financial non pay benefits which other doctors in the practice do not receive,
The first comparator Dr. D joined the practice over three years after the complainant and became an employee in a very different economic climate and timeframe. The second comparator Dr. G joined some two years later and in both cases the practice struggled to find doctors to join and went to extensive lengths to find suitable doctors including placing recruitment adverts for many consecutive months in medical journals and on the ICGP website,
Dr. D and Dr. G are on the specialist register of GP’s and both participate in the out of hours NEDOC service.
Findings and Conclusions:
In this case, I must consider the Complainant's claim that the Respondent has discriminated against her on grounds of age in respect of a failure to provide her with equal pay in respect of two named comparators.
Section 29 of the Employment Equality Act states:
(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 that 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….
Section 28(1) states:
For the purposes of this Part, “C” and “D” represent 2 persons who differ as follows:
(e) in relation to the age ground, C and D are of different ages;
Sec 85 A5(1) states “Where is any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary
It has been the well-established practice of the Commission and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011,  ELR 201, where the Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.
In the case of Arturs Valpeters v Melbury Developments Ltd  21 E.L.R. 64 the Court stated in respect of the provision in S 85A that; “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 must 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 Dr.awn. 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.”
In Margetts v Graham Anthony & Company Limited, EDA038,the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”
So, it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.
The Complainant states that she was directly discriminated against on the grounds of age in relation to her rate of pay in that she performs like work or work of equal value with two named comparators who are twenty years younger than the complainant
Like work is defined in Section 7 of the Act as follows: ...in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if-
•both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work
•the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or
•the work performed by one is equal in value to the work performed by the other having regards to such matters as skill, physical or mental requirements responsibility and working conditions
The complainant advised the hearing that she was employed by the respondent in its GP practice since July 2011. Dr. O was the owner of the practice at that time.
The parties advised the hearing that there are now five doctors working in the practice as follows:
Dr. O founder of the practice who started in 1983
Dr. L joined in 2010
Dr. R the complainant joined in July 2011
Dr. D a named comparator in this claim joined in February 2015 and
Dr. G the other named comparator joined in September 2017.
The complainant advised the hearing that she had discovered on the 4th of April 2018 that two other female doctors, Dr. D and Dr. G, working in the practice were being paid nearly fifty percent more than the complainant. The complainant told the hearing that the comparators are both more than twenty years younger than her and that all three of them are all employed as GP assistants and perform the same job in the practice. The complainant told the hearing that she challenged the owner of the practice Dr. O about the different rates of pay and he did not deny that the two comparators were being a higher hourly rate of pay than the complainant.
The complainant advised the hearing that she had discovered in April 2018 that Dr. D was being paid an amount close to €250 per session whereas the complainant herself was only being paid €160 per session at that time. The respondent at the hearing acknowledged that the two comparators were being paid a higher hourly rate of pay than the complainant but denied that that disparity in the rate of pay was as great as the complainant asserted. The respondent clarified at the hearing that Dr. D and Dr. G were being paid €55 per hour and the complainant was being paid €41.90 per hour.
The respondent advised the hearing that the complainant at the commencement of her employment negotiated and discussed her own terms and conditions with the respondent and has had some amendments to those terms in the intervening years. The respondent told the hearing that as well as €41.90 per hour the complainant also receives the following financial non pay benefits which other doctors in the practice do not receive:
The practice pays 100% of the complainant’s medical indemnity insurance which in 2018 cost €6,239, this is not paid for all of the doctors in the practice.
The practice pays 100% of the complainant’s ICGP membership at a cost of €536 per annum which is not paid for other doctors.
The practice pays 100% of the complainant’s CME fees of €240 per annum which is not paid for other doctors.
The complainant also receives 50% of fees for every Medio legal report completed which is €172.50 which is not paid to other doctors.
The complainant also receives an additional two sessions for annual leave which the other doctors do not receive.
The respondent advised the hearing that the two comparators are being paid at a higher hourly rate than the complainant but submits that there are grounds other than age for this difference in the hourly rate of pay.
The respondent advised the hearing that the complainant negotiated and discussed her own personal terms and conditions with her employer when she commenced her employment in the practice and on a number of occasions since 2011 where she received a raise in her pay rate and has had some amendments to our terms over that time. The respondent stated that she is also in receipt of a number of financial non pay benefits which other doctors in the practice do not receive.
The respondent advised the hearing that each employee negotiated and discuss their own personal terms and conditions. The respondent stated that Dr. D joined the practice over three years after he complainant and became an employee in a very different economic climate and timeframe. Dr. G joined some two years later and in both cases the practice struggled to find doctors to join and went to extensive lengths to find suitable doctors including placing recruitment adverts for many consecutive months in medical journals and on the ICGP website
The respondent submits that as an employer it cannot be expected to alter the agreed terms and conditions of existing employees to match the salaries of new hires who start a different point in time and under different economic circumstances the practice does not deny that different doctors in the practice are paid different hourly rates.
The respondent advised the hearing that the two named comparators are both on the specialist register of GP’s with their own patient lists while the complainant is not and also that they participate in the NEDOC out of hours GP service which the complainant does not.
The respondent told the hearing that the complainant had raised the matter of the differing rates of pay with him and he had asked the complainant about joining the specialist register so that the practice could secure a GMS list in her name and expand the practice in this manner, this is something which the complainant would naturally financially benefit from but she indicated that she did not wish to discuss this option. In addition, the respondent submits that he raised the issue of the complainant securing further and additional skills and qualifications in order to expand the service offering of the practice and grow her income which she could financially benefit from but she did not wish to discuss this. The respondent stated that the complainant requested an additional week of annual leave even though at present she is paid for more annual leave than any other doctor in the practice.
Having considered the totality of the evidence adduced in relation to this matter and having regard to all of the circumstances of this case I am satisfied that the difference in the hourly rate of pay received by the complainant relative to the comparators Dr. D and Dr. G is grounded on factors other than age and accordingly I am satisfied that the complaint in respect of an entitlement to equal pay to that of two named comparators does not succeed.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the difference in the hourly rate of pay paid to the complainant relative to the named comparators Dr. D and Dr. G is grounded on factors other than age and accordingly I am satisfied that the complaint on grounds of age in respect of an entitlement to equal pay to that of two named comparators does not succeed.
Dated: 14th August 2019
Workplace Relations Commission Adjudication Officer: Orla Jones