€20,000 Award for Indirect Discrimination Based on Part-time Status
Background
The Complainant commenced employment with the Respondent in October 2008. At all relevant times, the Complainant’s role was described as that of ‘Senior Pharmacist.’
In December 2024, the Complainant referred a complaint to the WRC alleging that the Respondent discriminated against her on the grounds of ‘family status’, with the Complainant later including the ground of ‘gender’ to the complaint.
In particular, the Complainant alleged that the Respondent indirectly discriminated against her by refusing to consider her application for promotion based on her part-time status.
Summary of Complainant’s Case
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 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 which 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. 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 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.
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.
The Complainant submitted a formal complaint to the Respondent in respect of these issues. In response, the Respondent stated that they were entitled to set criteria for posts under the Health Act 2004, and 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 Complainant submitted that that requirements based on the number of hours worked served to create a barrier to entry for such persons such as herself and that the requirement for .5 WTE experience within a two-year period, as opposed to an aggregate standard of experience, constituted indirect discrimination on the ground of family status.
Summary of Respondent’s Case
The Respondent submitted that the eligibility criteria were agreed following a consideration of a report issued by an expert working group. 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 various 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 that she did not meet 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.
On this reasoning, the Respondent submitted that the Complainant had not been discriminated against either directly or indirectly.
Findings and Conclusions
It was common case that the Complainant was engaged on a part-time, job share basis. By submission and in evidence, the Complainant stated that she was engaged in these working arrangements to attend to domestic commitments. She 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, placed her at a distinct disadvantage in respect to a promotion within the Respondent Organisation and constituted indirect discrimination.
It was clear that the Complainant was an extremely well-qualified and highly regarded pharmacist within the Respondent Organisation. It was common case that the Complainant applied for the role of advanced specialist pharmacist, a role she submitted 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 phase due to a purported failure to meet the minimum criteria for the role.
It was apparent that this criterion was indirectly discriminatory. The Adjudicator cited authorities demonstrating 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 in such working patterns constitute indirect discrimination on the grounds of gender and family status. In this regard, the provision in question expressly prohibited 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 may otherwise be deemed to be indirectly discriminatory, so long as they can demonstrate an objective justification for its inclusion.
The Respondent submitted that the expert working group incorporated the requirement for a .5WTE, as there is a minimum level of service required to provide consistent specialist input as part of a multi-disciplinary team.
It was not at all apparent as to why this ‘minimum level of service’ must be attained while the applicant is employed for over 50% of the time in the role. It remained unclear as to why an applicant could not 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, the Adjudicator found that the requirement in question was not necessary to achieve a real need in the Respondent Organisation and the Respondent could not therefore rely on the defence of objective justification.
While the Respondent had a right, if not an obligation, to set certain standards and eligibility criteria for roles within its Organisation, this right does not permit the Respondent to indirectly discriminate against applicants without establishing objective justification for doing so.
In these circumstances, the Adjudicator found that the Complainant was discriminated against, and her application succeeded.
Decision
The Adjudicator found that the Complainant had been discriminated against and awarded the sum of €20,000 in compensation as well as directing that the Respondent re-evaluate the eligibility criteria for the role of advanced specialist pharmacist.
Recommendations
Employers should note that part-time work, and particularly part-time work pursued for the purposes of attending to familial commitments, is predominantly availed of by women and, consequently, apparently neutral provisions that apply to all part-time Employees invite the risk of indirect discrimination claims on the grounds of gender and family status.
While Employers have a right to set certain standards and eligibility criteria for roles within their Organisation, this right does not permit Employers to indirectly discriminate against applicants without establishing objective justification for doing so.
If apparently neutral criteria to apply for a new role are later found to be indirectly discriminatory, the defence of objective justification will only be available where the Employer can demonstrate that the requirement is meeting a real need within the Organisation.