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-00069219-001

11/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00069222-001

11/02/2025

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 11th February 2025, the Complainant referred the present complaints to the Commission. Herein, she alleged that the Respondent discriminated against her on the grounds of “gender”, with the Complainant later including the ground of “family status” 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 submission, the Complainant further submitted that this allegation constitutes less favourable treatment on the grounds of her part-time status within the meaning of the Protection of Employees (Part-Time Work) Act. By response, the Respondent denied these allegations, 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. In circumstances whereby that file reference also raises a similar complaint under the Employment Equality Acts, those matters will be discussed in that decision, with the present decision relating to the complaint under the Protection of Employees (Part-Time Work) Act only.

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.

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 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 less favourable treatment of part-time workers. 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 less favourable treatment against those engaged on part-time contracts. 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 subject to less favourable treatment 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 claimant had been treated unlawfully in the promotional campaign. They stated that the claimant 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 as a part-time employee.  

Regarding the present complaint, the Complainant has alleged that the Respondent subjected her to less favourable treatment on the grounds of her part-time status. 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 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 process. In this regard, they submitted that the provision was necessary to ensure that adequately qualified candidates applied for the role in question.

In this regard, Section 9(1) of the Act provides that,

“…a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.”

In the course of the hearing, the Respondent accepted that the Complainant is a part-time employee for the purposes of this section. The Respondent also raised no issue regarding the Complainant’s engagement in “like work” for the purposes of Section 7 of the Act.

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 “less favourable treatment” as outlined within Section 9, quoted above.  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. In this respect, a comparable full-time of the employee same grade and standing as the Complainant would not be subject to such “less favourable treatment”.

Notwithstanding the foregoing, an employer may rely on a provision that may otherwise be deemed to be in breach of Section 9, so long as they can demonstrate an objective grounds for the same.

In this regard, Section 9(2) provides that,

“…if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.”

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 grounds as outlined in 9(2).   

In these circumstances I find that the Complainant has been subject to less favourable treatment that is not justified on objective grounds against within the meaning of the Act, and her application is deemed to be well-founded.

CA-00069219-001 – Complaint under the Employment Equality Act

In circumstances whereby the subject matter of this complaint is discussed and an outcome issued in respect to the same under an alternative file reference, I find that the Complainant was not discriminated against under this particular file reference.

CA-00069222-001 – Complaint under the Protection of Employees (Part-Time Work) Act, 2001

I find that the Complainant was subject to less favourable treatment that is not justified on objective grounds within the meaning of the Act, and her application is deemed to be well-founded.

Regarding redress, it is common case that that the relevant factual matrix is the subject of two separate complaint under difference legislative provisions. In circumstances whereby an award was issued to the Complainant, and a course of action was direct as regards the Respondent, under the alternative legislation impleaded, I make no award of compensation in relation to the breach if this legislation.

Part-Time Worker, Double Recovery