Complainant

Respondent

Parties

Marie  Ronan

Health Service Executive

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00068048-001

12/12/2024

The Complainant commenced employment with the Respondent on 1st October 2008. The Complainant remains a permanent, full-time member of staff, in receipt of an average weekly wage of €1,182.04. At all relevant times the Complainant’s role was described as that of “Senior Pharmacist”.

On 12th December 2024, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent discriminated against her on the grounds of “family status”, with the Complainant later including the ground of “gender” to the complaint, within the same factual matrix. In particular, the Complainant alleged that the Respondent indirectly discriminated against her by refusing to consider her application for promotion on the basis of her part-time status. By response, the Respondent denied this allegation, stating that the criteria in question were developed following lengthy consideration by an expert working group appointed for this purpose and were the subject of a comprehensive negotiation with the relevant bodies within the industrial relations framework of the state.

A hearing in relation to this matter was initially convened for 16th June 2025. On that date both parties read their submissions into the record and set out their mutual positions regarding the complaint. On enquiry from the Adjudicator, it was apparent that further submissions were required from the Respondent regarding the allegation of indirect discrimination on the part of the Complainant and any objective justification the Respondent intended to rely upon. Given that such matters would likely have to be supported by sworn evidence, and in circumstances whereby the Complainant would have to be afforded the right of response to the same, the matter was adjourned to a later date on this basis.

At the outset of the resumed hearing, listed for 7th August 2025, the representative for the Respondent applied for a further adjournment of the matter. This application was grounded on the basis of their primary witness having returned from annual leave on the date of the hearing, and their apparent difficulty in taking instructions and arranging the attendance of this person. This application was denied on the grounds that the Respondent did not make the same in good time as per the relevant guidelines in relation to the same. It was further noted that the Respondent has already been facilitated with an adjournment to permit the attendance of relevant witnesses and to facilitate the exchange of submissions. Finally, it was noted that the Complainant did not consent to a further adjournment and indicated her wish to have the matter finalised in the current session.

Both this resumed and the initial hearing were conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

This hearing was heard in parallel to that bearing file reference ADJ-00055850, and this decision should be read in conjunction with the same. While that decision also raises a complaint under the Employment Equality Acts, these matters will be discussed in this decision, with the alternative legislation being considered under that file reference.

Both parties issued extensive submissions in advance of the hearing, these submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaint, said evidence was given under affirmation and was opened to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaint was raised at any stage of the proceedings.

In evidence, the Complainant stated that she qualified as a pharmacist in 2008. She stated that in 2015, she took up a role in a hospital on a job-share basis as a senior clinical pharmacist. In 2021, with the opening of the COVID 19 vaccination centres, the Complainant assumed the position of chief pharmacist whilst also continuing her hospital duties. The Complainant stated that in the summer of 2024, the application process for the new role of advanced pharmacist specialist posts was announced. Given that the Complainant had fifteen years plus experience as a pharmacist, and nine years specialising in the area of anti-microbial stewardship, she believed that she met the criteria and applied for the role.

In this regard, the Complainant referred to the advanced specialist pharmacist grade code document as produced by the Respondent on 24th July 2024. This document stated that the relevant experience required for the role was four years’ post registration hospital experience or the whole time equivalent (WTE), of which at least two years must be in the relevant specialty. Thereafter, the Respondent issued a job description in reference to this role. This job description described the following eligibility criteria; firstly, an applicant must be registered as a pharmacist within the state. Secondly, they must possess the relevant qualifications. Finally, the applicant must possess four years post registration hospital experience, of which two years must be in a relevant specialty demonstrating the required level of specialist practice. The final criterion was subject to a footnote stating that a minimum of .5 WTE (whole time equivalent) must have been in the specialist area for the duration of this time.

The Complainant completed the application form and duly submitted same well advance of the deadline. Herein, the Complainant set out, in some detail, her experience in relation to the various criteria outlined in the eligibility document. On 19th November 2024, the Complainant received correspondence stating that she did not pass the initial screening process for the role. In this regard, the correspondence stated that the Complainant did not demonstrate a minimum of two years’ experience in a relevant specialist role at a minimum of .5 WTE. The following day, the Complainant responded to express her concern. She stated that she had worked as a clinical pharmacist for fifteen years, nine of which have been in the relevant specialty. She stated that this specialty included five years at .42 WTE and 4.5 years at .67 WTE and on this basis, she believed that she possessed the relevant qualifications to be considered for the role.

On 22nd November 2024, the Complainant received a response stating that the requirements for four years’ post registration hospital experience had not been demonstrated. In this regard, the Respondent stated that the experience accrued in vaccination centres was not considered as hospital experience and was disregarded for the purpose of the present application.  They further stated that the requirement for two years’ experience in a relevant specialist role at a minimum of .5 WTE was not met. On 25th November 2024, the Complainant submitted a formal complaint to the Respondent in respect of these issues, with a formal response being received on 22nd December 2024. In her formal complaint, the Complainant alleged that the requirement for a minimum of two years’ service at 0.5 WTE indirectly discriminated against part-time workers and stated that same may constitute a complaint under the Employment Equality Act. By response, the Respondent stated that they are entitled to set criteria for posts under the Health Act 2004, and that the Respondent is entitled to set certain standards in this respect. They stated that the various criteria outlined were determined following a lengthy industrial relations process, including input from the various trade unions, and were based on the McCallum report into the hospital pharmacy career structure.

In this regard, the Complainant stated that the code of practice for appointments to positions in the civil and public service provides that appointments shall be made on merit, which necessitates the appointment of the most suitable candidate for any given post. She submitted that this was to be achieved through a transparent, competitive recruitment process. The criteria for judging the suitability of candidates must be related directly to the qualifications, personal attributes, skills required to fill the roles, duties, and responsibilities of the post. In this regard, the Complainant stated that the Respondent had deviated from this code of practice and relied on overly narrow criteria to prevent her application from progressing at the earliest point. In this regard, the Complainant stated that the requirement for a minimum .5 WTE within a set period of time constitutes indirect discrimination on the grounds of family status. In this respect, she stated that she was unable to locate any objective evidence as to the reason or origin of this requirement. She stated that, historically, roles within the Respondent have been based on aggregated experience rather than a specific WTE threshold. The Complainant stated that she could not determine any reason as to why this particular position was being treated differently, despite having raised the matter through all formal channels within the Respondent.

Having regard to the accumulation of the foregoing points, the Complainant submitted that the requirement for .5 WTE experience within a two-year period, as opposed to an aggregate standard of experience, constitutes indirect discrimination on the grounds of family status. In this regard, the Complainant submitted that many persons that work part-time or reduced hours do so due to various family commitments. She submitted that requirements based on the number of hours worked, such as those set out above, serve to create a barrier to entry for such persons such as herself. In this regard, the Complainant submitted that she had been discriminated against and submitted that her complaint should be deemed to be well-founded.

By submission, the Respondent accepted that the Complainant is a long-standing, well-qualified and highly regarded member of staff. The Respondent further accepted that the Complainant applied for the role in question and that her application was rejected on the basis of her not meeting the eligibility criteria. The Respondent further accepted that the Complainant did not meet the third criterion- being “experience within a hospital setting”.

In this regard, the Respondent submitted that the eligibility criteria were agreed in following a consideration of a report issued by an expert working group. Following the delivery of this report, an industrial relations process was undertaken that culminated in the publication of HSE Circular 16 of 2024 on 2nd July 2024. This circular sanctioned creation of the role of an “Advanced Specialised Pharmacist” within the organisation. A job specification, process flow, and frequently asked questions document in respect of this role duly issued in advance of the competition in relation to the same. The requirement for two years’ experience in a relevant specialist role at a minimum of .5 WTE originated in the report issued by the expert working group and was subject to negotiations by the relevant bodies within the industrial relations process.

Regarding the Complainant’s application itself, the Respondent submitted that the process was not a promotional competition; rather, it was an assessment of the candidate's existing experience in line with agreed eligibility criteria. In this respect, the Respondent denied that the Complainant had been treated unlawfully in the assessment of her application. They stated that the Complainant was deemed ineligible on the basis of not meeting the requirement of a minimum of two years at 0.5 WTE in the relevant specialty. They stated that this requirement was applied universally to all applicants and was clearly outlined in the various documents inviting the Complainant to apply for the role. They further submitted that this requirement was not arbitrarily inserted but arose in consideration of the relevant factors by the expert working group.

Having regard to the foregoing, the Respondent submitted that the Complainant had not been discriminated against either directly or indirectly.

Regarding the present complaint, the Complainant has alleged that the Respondent discriminated against her on the grounds of family status and gender. In this respect, she submitted that the Respondent prevented from being considered for promotion on the basis of her status as a part-time worker. In this respect, she submitted that the position adopted by the Respondent was indirectly discriminatory towards her and constituted a breach of the Act. In denying this allegation, the Respondent submitted that the relevant criteria were established following lengthy consideration by a working group and were the subject of a rigorous industrial relation consultation process. In this regard, they submitted that the provision was not discriminatory, but was necessary to ensure that adequately qualified candidates applied for the role in question.

In this regard, Subsection (1)(a) of the Acts provide that,

“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…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(a) prohibits discrimination on the basis that that party is a woman and the other is a man (referred to as “the gender ground”).

Subsection (2)(c) prohibits discrimination on the basis that one has family status and the other does not (referred to as “the family status ground”).

Regarding indirect discrimination in particular, Section 22(1)(a) provides that,

“(a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.

Thereafter, Section 28(1) provides that, in respect to “equality between other categories of persons” that,

“For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

…

(b) in relation to the family status ground, C has family status and D does not, or vice versa”

Section 31(1) then provides that,

“Subsections (1) and (1A)…of section 22 apply, in relation to C and D as they apply in relation to A and B, with the modification that the reference in subsection (1) to persons of a particular gender (being As or Bs) is a reference to persons (being Cs or Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.”

Regarding the instant complaint, it is common case that the Complainant is engaged on part-time, job share basis. By submission and in evidence, the Complainant stated that she is engaged in these working arrangements in order to attend to domestic commitments. In this regard, she has submitted that an apparently neutral provision, in this case a requirement for more than half-time whole time equivalent (WTE) within a relevant speciality, in effect working more than half-time, within a two-year period, places her a distinct disadvantage in respect to a promotional within the Respondent organisation and constitutes indirect discrimination as outlined above.

In the matter of Inoue v NBK Designs Ltd EED0212, the Labour Court, in consideration to application of the provisions cited above to part-time workers, held that,

“On the facts disclosed it is clear that the complainant was unable to work full-time, not because she is a woman per se, but because she is the mother of a school going child and the primary carer of that child. It is still the reality in modern society that mothers are more likely to fulfil that role than are fathers. More relevant to the instant case is the fact that where parents are separated or single, it is the mother who is much more likely to have custody of children. Consequently, as a general proposition, women who have children and are single, separated or divorced find it more difficult to work full-time than fathers who are single, separated or divorced or men who are not parents.”

More recently, in the matter of A Training Specialist -v- A Pharmaceutical Company ADJ-00025115, the Adjudicator held that

“As was pointed out by the Labour Court in Inoue, I am satisfied that it is still the reality that mothers are more likely to fulfil the primary parenting role of young children than are fathers. In the circumstances, I find that it is reasonable to infer as a general proposition that women who have children find it more difficult to work full-time than fathers who have children and/or men without children.”

In Bolger, Bruton and Kimber, Employment Equality Law 2nd Ed. 2022, at 5.128, the authors observe that,

“It is well recognised that flexible or part-time work is an attractive basis on which family responsibilities and paid work can be combined. As women primarily provide primary care for children, it is women with children (thereby combining both gender and family status) who tend to seek part-time or family-friendly work arrangements from their employer in order to accommodate their family commitments. However, as the best career and promotional prospects emanate from full-time work, working mothers are more likely to work in poorly paid, manual, temporary, low-status and part-time jobs. Therefore, family-friendly working arrangements for women with family commitments can in fact impinge on their career prospects in an increasingly demanding labour market where full-time work, long hours and flexibility are expected of employees. These are not conditions which suit employees with family caring responsibilities as compared to persons without children. Employees with caring responsibilities are less able to adapt their working conditions and find it difficult to conform to aspects of an increasingly work-cultured environment such as working after close of business, frequent travel or entertaining clients after work, etc. Any such requirements could constitute indirect discrimination on grounds of family status and then the employer would be required to objectively justify these requirements.”

Regarding the instant case, it is clear that the Complainant is an extremely well-qualified and highly regarded pharmacist within the Respondent organisation. It is common case that the Complainant applied for the role of advanced specialist pharmacist, a role she submits she is eminently qualified to fulfil, on the creation of the post in late 2024. On applying for this role, the Complainant’s application failed at the initial screening process due to a purported failure to meet the minimum criteria for the role. By communication, the Respondent stated that the relevant criterion in question was that an applicant must demonstrate two years’ experience within relevant specialty demonstrating the required level of specialist practice. This criterion was subject to a footnote stating that a minimum of .5 WTE must have been in the specialist area for the duration of this time. In circumstances whereby the Complainant was engaged in a form of job-share that provided fewer than half normal hours in this setting, and in circumstances whereby other experience was not deemed relevant for these purposes, it was determined that she did not meet this requirement and her application was not processed any further.

In consideration of the authorities cited above, it is apparent that this criterion, and more specifically the footnote to the same, constitutes indirectly discriminatory within the meaning of Section 22 of the Act.  In this regard, the authorities cited above demonstrate that part-time work, and particularly part-time work engaged with for the purposes of attending to familial commitments, is predominantly availed of by women and, consequently, any apparently neutral provision that disadvantages persons engaged such working patterns constitutes indirect discrimination on the grounds of gender and family status. In this regard, the provision in question expressly prohibits any persons working below a certain threshold of weekly hours from being considered for a senior role, regardless of their aggregate level of experience in that role or without consideration of any other relevant factors.

Notwithstanding the foregoing, an employer may rely on a provision that mat otherwise be deemed to be indirectly discriminatory, so long as they can demonstrate an objective justification for the same.

In this regard, Section 22(1)(b) provides that,

“Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to…unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

In Inoue, cited above, the Labour Court held as follows,

“The wording of Section 22(1) must be interpreted as contemplating the three-tiered test for objective justification set out by the ECJ in Bilka – Kaufhaus. This test requires that the Court be satisfied that the impugned measures,

a)     correspond to a real need on the part of the undertaking,

b)     are appropriate with a view to achieving the objective pursued and

c)      are necessary to that end.”

At the initial hearing of this matter, the Respondent was invited to issue a submission in relation to this point, preferably to be supported by direct witness evidence at the resumed hearing. In advance of the resumed hearing, the Respondent submitted that the expert working group incorporated the requirement for a .5WTE, as there is a minimum level of service required in order to provide consistent specialist input as part of a multi-disciplinary team.

A number of points arise in relation to this contention. Firstly, the author of the Respondent’s submission accepted that they did not have any personal input into the implementation of the requirement for .5WTE, and accepted that they could not provide any direct evidence into the substance of this statement. In addition to the foregoing, and taking this statement at its height, it is not at all apparent as to why this “minimum level of service” must be attained whilst the applicant is employed for over 50% of the time in the role. It remains unclear as to why an applicant cannot rely on experience aggregated over a longer period, which would provide the same level of overall experience required for the role, without excluding those engaged on certain part-time contracts. In this regard, I do not find that the requirement in question is necessary to achieving a real need on the part of the Respondent. In these circumstances, I find that the Respondent cannot rely on objective justification as outlined in Section 22(1)(b) 

Notwithstanding the foregoing, it is clear that the Respondent has a right, if not an obligation, to set certain standards and eligibility criteria for roles within its organisation. This need is all the more acute when the role in question involves the distribution of controlled substances within a hospital environment. However, this responsibility does not permit the Respondent to indirectly discriminate against applicants without establishing objective justification for doing so.

In these circumstances I find that the Complainant has been discriminated against within the meaning of the Act, and her application succeeds.

I find that the Complainant has been discriminated against within the meaning of the Act, and her application is duly deemed to be well-founded.

Regarding redress, it is apparent that the Respondent’s refusal to consider the Complainant’s application may well have led to a loss of earnings on her part. In addition to the forgoing, it is noted that awards against Respondent are deemed to have a deterrent effect regarding potential future acts of discrimination. Having in consideration of the foregoing, I award the Complainant the sum of €20,000 in compensation for the breach of the Act.

In addition to the foregoing, the Acts permit a direction that a Respondent take a certain course of action regarding a finding of discrimination. In this respect, I direct that the Respondent re-evaluate the eligibility criteria for the role of advanced specialist pharmacist. In this respect, the parties should meet within six weeks of the date below to discuss the Respondent’s conclusions in this respect.

Family Status, Gender, Part-Time Work, Indirect Discrimination, Objective Justification