The Labour Court has rejected a claim by a director of the Irish Prison Service (IPS) that he was discriminated against on the basis of age because he was paid some €32,000 a year less than another director with comparable responsibilities who was five years older than him.
Don Culliton, director of custody, security and operations at the IPS, was appealing a decision by the Workplace Relations Commission last January to reject claims of age discrimination under section 83 (1), Employment Equality Acts, 1998 to 2015 originally made by three IPS directors.
At the WRC, an adjudication officer found the three had established a prima-facie case that there had been discrimination but that the IPS had successfully rebutted the presumption.
The case related to a pay disparity that existed at the time of the complaint between Fergal Black, then director of care and rehabilitation at the IPS, and the rest of the service’s directors who collectively made up the second tier of management at the organisation.
In its decision, the Labour Court put the respective values of the remuneration packages at €131,644 and €164,691.
A former director general of the service, Brian Purcell, explained that Mr Black’s larger remuneration was rooted in a decision in the early 1990s to increase the pay of the organisation’s then director of medical services, Dr Enda Dooley, so as to retain him after consultants working in the health service had received significant increases.
In 2007, Dr Dooley, along with 85 per cent of the IPS’s other head office staff, said he would not relocate to Longford with the service, which was moving there as part of a government decentralisation initiative.
Mindful of the challenge of recruiting a suitably qualified replacement willing to work at the new headquarters, the court heard, a decision was taken to broaden the eligibility criteria for would-be applicants and advertisements were placed seeking candidates with “a third-level/professional qualification in the healthcare field and/or a minimum of seven years’ managerial experience in a healthcare/health services or related field”.
Mr Black, then on secondment to the Department of Justice from the Health Service Executive, applied for the job based on his management experience and was successful. Though a medically qualified executive clinical lead was appointed a decade later, in 2018, and took over responsibility for all clinical decisions, neither his terms nor, he said, his own responsibilities were diminished.
The WRC hearing was told the position had, in fact, been ‘red circled’ – the terms preserved while the occupant remained – and that upon his retirement it would be advertised at the same pay as that of the other directors.
Mr Culliton, a former director of human resources with the IPS, told the court he interpreted the wording of the advertisement as requiring the seven-year element and believed it therefore inserted an age element into the recruitment process. He said he had sought an explanation as to why Mr Black, who was several years older than him, was being paid more but had not received one. He said the first he heard of the red circling was at the WRC.
The court, chaired by Alan Haugh, rejected his appeal, however, saying it found the evidence given by Mr Purcell, “unqualifiedly justifies the respondent’s decision to include the criterion in the advertisement”.
“The court finds that the complainant’s submission that the seven years’ experience criterion he takes issue with constitutes direct discrimination puzzling,” it said. “Directly discriminatory to whom? There was no evidence before the court that the complainant was even aware of the advertisement in 2007, let alone that he might have contemplated applying for the role had he deemed himself eligible for it.”
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