Consultant doctors’ pay claim over austerity contracts bound to fail because of teachers’ precedent, State says

The State claims a “roadblock” precedent set by the European Court of Justice upholding two-tier pay for primary schoolteachers means that a group of hospital consultants challenging their austerity-era contracts cannot win.

The Workplace Relations Commission heard extensive legal argument on Thursday as large opposing legal teams acting for both the complainants and the State in the matter summed up their cases on the fifth and final day of hearings in the matter.

The group of consultant doctors, represented by the Irish Hospital Consultants’ Association, have argued their case is distinct from the teachers’ case – with its lawyers arguing there had been an “entirely different issue and a much narrower scope” at play in the other case.

Consultant doctors appointed to posts after October 1st, 2012, received contracts of employment incorporating a pay cut of 30 per cent compared with incumbent colleagues, the tribunal has been told.

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Lawyers acting for the hospital consultants argue that the lowered pay scale for new hires after October 1st, 2012, amounts to age-based discrimination.

Gerard Durcan SC, lead counsel for the doctors, appearing with Cathy McGrady SC instructed by Daniel Spring and Company, referred to statistical evidence of an age gap of 10 years between new hires and incumbents.

The State’s position was that the age of the two groups of consultants at the time of their first appointment ought to be the comparison – referring to evidence presented by its own statistician earlier in the case which found no statistically significant difference between the cohorts at that point.

Mr Durcan argued that in order for the State to defend the policy it would have to demonstrate that it served a “legitimate aim”, was “appropriate and necessary”, and that the aim had to be pursued in a “consistent and systematic manner”.

However, the claimants’ position was that the 30 per cent pay cut was “uniquely harsh” compared with the treatment of other public servants, Mr Durcan said – adding that the State could not rely solely on “budgeting reasons” to justify the cut.

“It is clear that in terms of objective justification, if the desired aim can be reached by non-discriminatory means, then such means must be adopted,” Mr Durcan submitted.

Eoin McCullough SC, lead counsel for the State parties, said the 2019 decision of the CJEU in the case of primary schoolteachers Tomás Horgan and Claire Keegan was “binding” on the WRC and was “on all fours” with the consultant doctors’ complaints.

The teachers failed in their challenge to the 10 per cent reduction in pay offered to new entrants to the teaching profession from 2011 onwards after the CJEU ruled that the relevant point of comparison was their age on first appointment to a teaching post.

“The complainants are faced with the central roadblock of Horgan and Keegan. A difference in treatment due to date of recruitment does not constitute indirect discrimination. That’s the law,” Mr McCullough said.

Mr Durcan’s position in earlier submissions had been that the Horgan and Keegan case considered “an entirely different issue and a much narrower scope”.

About 4½ hours of legal argument in the case on Thursday concluded a series of hearings in the matter which have been going on since November 2022 into 11 test complaints under the Employment Equality Act 1998 by consultant doctors Solomon Asgedom, David Bradley, Gabrielle Colleran, Edward Loane, Olga Mikulich, Selina Morgan-Fillay, Nikolai Mroue, Julie O’Brien, James Paul O’Neill, Declan O’Rourke and Sandhya Ramesh Babu.

The Minister for Health, the Minister for Finance, the Minister for Public Expenditure and Reform, the Health Service Executive and a group of voluntary hospitals are the respondents to the claims by the doctors.

The tribunal was told the parties have not yet come up with an agreed figure for the sum of money at stake in the case – though the State has previously indicated the matter could be decided without it.

It was agreed that the liability figure was not needed to conclude the hearing – though one health service official who gave evidence this summer said the contracts at issue in the case had shaved €481 million off the health service payroll to date.

At the conclusion of proceedings on Thursday, the parties thanked adjudicating officer Orla Jones for her handling of the hearings.

“There’s a lot of lawyers here. You have managed to keep us all happy,” Mr Durcan remarked.

“For the moment,” Ms Jones said.

A decision is to be delivered in writing to the parties at a future date and published online two weeks later by the WRC.