ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022454
A Health Service Provider
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: 11/9/2019 and 04/12/2019
Workplace Relations Commission Adjudication Officer: Louise Boyle
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015following 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 submits that she was indirectly discriminated against on the age grounds by the existence of a Legacy Transfer Policy (hereinafter referred to as LTP) and the failure of the respondent to promote the complainant because of indirectly discriminating against the complainant.
Taking into consideration all factors, I have taken the decision to anonymise this decision.
During this hearing, submissions were substantial with copious volume of documentation and oral evidence and, whilst I will not be referring to every event or reference every case law presented, I have taken into account all the submissions including oral and written made to me in the course of my investigation as well as the evidence presented at the hearing.
By way of background it is of note that in 2002 there was a reorganisation within Community Health under the Brennan Review. Prior to that, community health medicine had been staffed by Area Medical Officers (AMOs) and Senior Area Medical Officers (SAMOs). The post of SAMOs required a Degree/Diploma in Public Health or equivalent and in 1988 a recommendation included inter alia that SAMOs should have a Master’s degree in Public health. As a result of the Brennan Review, the grade of AMO was to be retained and the grade of SAMO was to be replaced with the grade of Senior Medical Officers (SMOs). The role of SMO required a Masters/Diploma in Public Health or equivalent.
In 2003 following industrial action by community doctors, agreement (hereinafter referred to as the 2003 Agreement) was reached with the said doctors whereby it was agreed that there would be no further recruitment at AMO level, and that any new doctors wishing to pursue careers in Community Health Medicine would do so at SMO level, subject to the requirement of the Masters/Diploma in Public Health or equivalent which included being a member of the Irish College of General Practitioners which the complainant is. In 2014 the complainant was successful at interview and ranked #16 on a panel for the position of SMO.
There exists 9 community health organisations (CHOs) across the country and in the complainant’s specific CHO, (hereinafter referred to as CHO_A), there exists a transfer policy which was established in 1971. This transfer policy applies to Counties X, Y and Z in CHO_A and employees in CHO_A may avail of a post that arises at their own grade within CHO_A through the LTP. If the post is not filled through the LTP, then the position is passed to the national panel.
Summary of Complainant’s Case: CA-00029094-001
The complainant is on a national panel awaiting any SMO role that may arise. However, if any SMO post arises in one of the three counties covered by the LTP; priority is given to those already holding the position of SMO within CHO_A. This LTP is unique to CHO_A and covers three counties X, Y and Z and this LTP does not exist across the rest of Ireland.
On a regular basis available SMO vacancies are filled from the LTP excluding the complainant as she is not considered at the existing grade of an SMO. The LTP had been used to fill SMO posts in in 2008, 2010, 2013, 2014, 2015 and 2019. The complainant submits that she has the same qualifications as SMOs and does the same work but is discriminated against because of the existence of the LTP as it benefits younger SMOs.. The complainant initially cited as comparators Dr A1 and Dr B1 SMOs and later submitted that SMOs within CHO_A would be her comparators for this complaint. It was submitted that the complainant sourced her information regarding her comparator pool from a census and from data that is publicly available.
The complainant outlined that her research through her own census and data available nationally had confirmed that for September 2019:
The Mean age of 7 AMOs in County X and CHO_A is 62 years
The Mean age of 4 doctors on transfer panel is 42 years
The Mean age of 15 SMOs within CHO_A is 48 years
It was submitted that the national cohort of AMOs is significantly older than the national cohort of SMOs as nationally the average age of SMOs is 48 and nationally the average age of AMOs is 58. It was further submitted by the complainant that the age profile of the doctors on the transfer file was 42 years which is significantly younger than the complainant’s age of 54. In January 2019 available SMO hours were granted to an SMO who utilised the LTP and transferred into County X which in effect is discriminating against the complainant. Additional data from 2019 identified that there were a total of 150 SMOs broken up into the following age groups:
The age profile of 17 AMOs across community healthcare organisations is :
The complainant submitted that a cohort of older doctors who are employed at the historical AMO grade have been denied all opportunities to be promoted because of the existence and application of the LTP which comprises of significantly younger doctors who transfer into County X.
Summary of Respondent’s Case: CA-00029094-001
The respondent submitted that the Respondent refutes the allegations and submitted that the complainant had failed to provide primary facts on which she could rely on in alleging discrimination through the LTP. Furthermore, evidence given was that the work of AMOs and SMOs as provided for in the job description is different and requires a specific level of educational qualification that not all AMOs have.
The respondent submitted that nominating two comparators or alternatively a pool of AMOs and SMOs within a specific area of the respondent’s area without consideration of the full make-up of AMOs and SMOs indicate the complainant’s failure to establish a prima facia case. It is clear from case law that a comparator may not be based on an unrepresentative group. The respondent also submitted that the complainant meets the educational qualification standards required for the role of SMO and that she was placed #16 on the panel for promotion in 2014. The complainant has not expressed any interest in a post of SMO in a county other than County X and once she secures an SMO place she will be in a position to secure the same pay as SMOs.
The respondent outlined that the complaints are spurious and that the complainant is being brought solely for the purpose of pursuing an IR agenda while avoiding engaging with the binding mechanisms set out in public service agreement for the resolution of industrial relation issues.
The complainant at the time of hearing was 54 years old and data from 2018 outlined that there are a total of 39 AMOS nationally with 31 AMOs working in community healthcare organisations. The age profile across community healthcare organisations is:
There are a total of 104 SMOs nationally with 88 working in community healthcare organisations. The age profile across community healthcare organisations is given below and would suggest that the age range of AMOs includes people across all the age brackets:
Other AMOs of a similar age to the complainant have transferred out of their county and have come back again and the same process can apply to the complainant and the complainant has not set out any evidential basis for her apparent suggestion that younger doctors are in a better position to utilise the LTP. All candidates who meet the educational qualification criteria are eligible for promotion or appointment to the SMO posts as they arise irrespective of age. The complainant’s comparator pool does not meet the criteria of a suitable pool as set down by previous case law.
The complainant has failed to establish a prima facia case in respects of her claims of discrimination.
Findings and Conclusions: CA-00029094-001
The complainant submits that she was indirectly discriminated against on the age grounds when SMO hours became available and that the national panel was not utilised but that instead an existing SMO in another county was offered the position as per the LTP. The respondent submits that AMOs who wish to be promoted to SMO posts have applied for SMO posts in other counties and then transferred into County X and some would be older than the complainant and that furthermore the doctor who utilised the LTP in January 2019 was only 1 year and 11 months younger than the complainant.
Section 6(1) of the Employment Equality Acts 1998 and 2004 (the Act) provides, as follows:
‘‘(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
(a) 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,(iii) may exist in the future, or(iv) is imputed to the person concerned,
Section 6(2)(f) provides that
“As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),
Indirect discrimination, as contained in Article2(2) of European Council Directive 97/80/EC arises where an apparently neutral provision criterion or practice puts persons having a protected characteristic, in this case age grounds, at a particular disadvantage. In Stokes v Christian Brothers High School Clonmel  IESC 13, the Supreme Court per Clarke J, as he then was, at par 9.2, referred to the meaning to be ascribed to the term “particular” as used in this context. He held as follows: - “I am satisfied that the use of the term "particular" brings with it a requirement, as a matter of law, that it must be established that the extent of any disadvantage is significant or appreciable.”
Section 85A (1) of the Act states: “Where in 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.” This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA082 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.
It has been set out in Southern Health Board v Mitchell AEE/99/E that
“the first requirement is that the complainant establish facts from which may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must provide on the balance of probabilities the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination.
It was not disputed that the complainant is suitably qualified for the role of SMO and currently holds a place on a national panel for the role of SMO when one arises. When a vacancy (including SMO vacancies) arise in CHO_A it is offered in the first instance to those on the transfer panel, in chronological order and if there is no one on the transfer panel interested in accepting the post, the vacancy is then recruited through the national or local recruitment service. It is noted that the complainant has not expressed any interest in any SMO role that has arisen outside of County X as she wishes to remain in the County X. The complainant offers details of the ages of those within counties X, Y and Z which purports to show that the LTP benefits those of a younger age and puts forwards that Dr A1 and Dr B1 and later that CHO_A is a suitable comparator. It was not disputed that the complainant is 1 year and 11 months older than the doctor who secured the SMO role in County X in January 2019.
There has been much case law dealing with comparator pools. The use of statistics is deemed a permissible means of showing that an impugned practice criteria or provision (PCP) places those having a particular characteristic at a significant disadvantage relative to those who do not have that characteristic. However, the statistics relied upon must be relevant and probative of that which they are relied upon to show. This normally involves identifying a pool comprising those who can comply with the PCP (the advantaged group) and those who do not (the disadvantaged group) and comparing the number in each category by reference to the protected characteristic in issue, in this case age. If, in the context of the instant case, the advantaged group comprises significantly more people in a younger age group that those in the disadvantaged group there is prima facie discrimination and the Respondent must objectively justify the requirement of the PCP giving rise to the disadvantage. This approach was also adopted by this Court in Determination EDA072, PSEU v Minister for Finance and CPSU. That decision was appealed to the High Court and was upheld by O’Keeffe J, reported as Neil King and Ors v Minister for Finance and Ors  IEHC 307. In certain circumstances the identification of the appropriate pool can be problematic. It has been held by the UK Court of Appeal in Grundy v British Airways PLC IRLR 74, that the correct principle is that the pool must be one which suitably tests the particular discrimination complained of, but that is not the same thing as the proposition that there is always a single suitable pool for every case. In conducting an exercise of this nature, the question which must always be examined will be whether the impugned PCP constitutes an obstacle in the way of persons having the protected characteristic relied upon by the Complainant. The decision of the House of Lords in Rutherford v Secretary of State for Trade and Industry IRLR 551 is authority for the proposition that the pool chosen for comparison should only comprise those who have an interest in the benefit in issue who could hope to obtain that benefit were it not for the PCP.
As further determined by the Court of Justice (C-427/11) statistics must show “whether they cover enough individuals; whether they consider purely fortuitous or short term phenomena and whether in general they appear to be significant”. McCarthy J set out what Mr. Justice John MacMenamin regarded in Kenny & Ors v The Department of Justice, Equality and Law Reform, The Department of Finance and The Commissioner of An Garda Síochána  IESC 62 as a “careful summary of the legal procedure to be followed thenceforward.
· (i) All issues arising in a claim of indirect gender discrimination must be determined by the use of the same comparators;
· (ii) Such comparators are valid comparators only if they cover enough individuals, do not illustrate purely fortuitous or short term phenomena, and in general appear to be significant;
· (iii) Valid comparators could not be based upon groups formed or individuals chosen in an arbitrary manner, or on an artificial or unrepresentative basis: the choices must be made from the whole cohort of persons with whom claimants sought parity;
· (iv) One could not simply discard a succession of persons or classes in a cohort in order to arrive, by a process of elimination, at classes within the whole group whose members were performing the same work;
· (v) The comparators must be in an equivalent situation to the claimants; and
· (vi) The comparators must constitute a relatively large number of employees who did the same work as the claimants but were paid at a higher rate; that is to say, a relatively large number of men, or enough of them.
Having considered the submissions I do not regard the complainant’s comparator pool of either 2 individuals (Dr A1 and Dr B1) or CHO_A as pools which meets the aforementioned criteria as it does not cover enough individuals, appears to be illustrating “purely fortuitous or short terms phenomena” and does not “constitute a relatively large number of employees” and does not meet the standards of an appropriate pool as referred to in Grundy v British Airways PLC or indeed Kenny & Ors. . There is disparity in the numbers submitted at a national level by the complainant and the respondent and I note that the complainant’s data is based on 2019 data and that of the respondent was from 2018. The pool of all SMOs within the community submitted by the respondent totalling 88 identifies a broad range of age profiles with 4.54% falling into the youngest age profile (30-34), with 25% of the SMOs aged 40-44 and the number of SMOs across the remaining age profiles ranging from 11% to 16%; with 4.54% over the age of 65. The pool of all SMOs within the community submitted by the complainant totals 150 and also identifies a broad range of age profiles with 2% falling into the youngest age profile (30-34), with 19.3% of the SMOs aged 40-44 and the number of SMOs across the remaining age profiles ranging from 12% to 18.6 with 2% over the age of 65 . On the whole these do not identify significant disparity across the ages and does not suggest that SMOs are younger than the complainant. Furthermore, the SMO who secured the position in January was only 1 year and 11 months younger than the complainant. The complainant has not established a prima facia claim that she was indirectly discriminated against because of the LTP on the age grounds.
While the LTP clearly does not apply in any other geographical area, and it could be seen unfair when you do not benefit from it; I note that the main factor preventing the complainant progressing to the role of SMO is that she has no interest in a role in any other area other than County X as well as her place on the actual national panel and that movement utilising the LTP is movement within an existing grade and she does not currently hold the grade of SMO. I must find that the complainant has not established a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on her and has failed to establish facts, statistical or otherwise, from which it may be presumed that the principle of equal treatment has not been applied to her.
I find that the complainant has failed to establish a prima facie case of discrimination
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 complainant has failed to establish a prima facie case of discrimination and I must find that the complainant was not discriminated against.
Dated: 21st May 2020
Workplace Relations Commission Adjudication Officer: Louise Boyle
Equality, indirect discrimination, promotion