A group of 181 hospital consultants who claimed they were being subjected to ageist discrimination because their austerity-era job contracts paid them less than their senior colleagues for the same work have lost a series of test cases.
The doctors, all members of the Irish Hospital Consultants Association (IHCA), had lodged nearly 1,000 individual statutory complaints under the Employment Equality Act 1998 in 2019, which were considered by the Workplace Relations Commission at a series of public hearings between November 2022 and September 2023 last year.
Some 61 claims by 11 senior doctors selected as agreed test cases in the dispute have been rejected by the tribunal in decisions released on Friday morning.
The doctors’ union legal team called the employment terms for new entrants to the profession “uniquely harsh” compared with the treatment of other public servants – leaving them with the dilemma of continuing to accept the lower pay or take up the “less satisfactory” Sláintecare contract, giving up routine private practice to get on a higher pay scale.
The WRC was told that consultant doctors appointed to posts after October 1st, 2012 received contracts of employment incorporating a pay cut of 30 per cent compared with most incumbent colleagues, the tribunal has been told.
That meant that the best-paid new clinical consultants hired in October 2012 would be on a pay scale starting at €116,207 instead of the €184,455 for comparable incumbent colleagues, who were otherwise on the same contractual terms.
The claim forms lodged by the IHCA’s lawyers on behalf of its members sought “parity of treatment to include equal remuneration and compensation in the form of arrears of remuneration”.
A barrister for the doctors, Gerard Durcan SC, appearing with Cathy Smith SC instructed by Daniel Spring & Co in the matter, said the cut was a “uniquely harsh” measure for new-entrant consultants.
In exchanges last June with Louise McGirr, an assistant secretary at the Department of Health’s resources division, Mr Durcan said it was understandable that they “might be a bit upset” about “uniquely experiencing” a pay differential of that scale.
“The evidence is consultants were paid well above average,” Ms McGirr said.
“We’re talking about cuts of 30 per cent in the health service. What about the public sector in general?”
“We all took cuts. The 30 per cent was not applied to existing contract holders,” Ms McGirr said.
“There’d be a lot more nurses than consultants. If you cut them by a lesser percentage, you might get more back for your buck,” Mr Durcan said later.
Ms McGirr responded that consultants were higher paid than many others, including their closest public sector comparators, such as judges.
The tribunal also heard from the chief economist of the Department of Finance, John McCarthy, who said austerity measures were doled out on a “no sacred cow” basis in a bid to achieve equity.
In cross-examination, Mr Durcan put it to Mr McCarthy that this suggestion was contradicted by the fact that the Department of Health had “exempted” a class of doctors – the incumbents – from the 30 per cent cut applied to new entrants.
Mr McCarthy replied that a similar policy had applied to teachers.
“This case is not about teachers,” Mr Durcan said.
“It’s about fiscal discipline – and making sure we don’t repeat the mistakes of the past,” Mr McCarthy replied.
“A difference in treatment due to date of recruitment does not constitute indirect discrimination. That’s the law,” said Eoin McCullough SC, who appeared as lead counsel for the Minister for Health, the Minister for Finance and the Minister for Public Expenditure and Reform, with Clíona Kimber SC.
Michael Howard SC appeared for the Health Service Executive, instructed by Phillip Lee LLP. A number of voluntary hospitals that were named as respondents in some cases were represented by Mary-Paula Guinness BL, instructed by the Irish Business and Employers’ Confederation.
In all, 11 barristers, among them five senior counsel, were instructed by the parties to the case. The State and the doctors’ union also commissioned academic statisticians to produce reports and appear as expert witnesses.
No exact figure was publicly disclosed for the total sum of money at stake in the proceedings, though the WRC had the power under the Employment Equality Act to make an award of compensation of up to two years’ salary to each of the doctors – meaning the tribunal decisions could have resulted in a bill to the taxpayer for tens of millions of euro.
In July last year, the parties undertook to have financial experts meet to discuss an agreed figure for liability, but the matter was not discussed further in open session and is not given in the decisions released on Friday.
One State witness said the differential in pay that existed at the time of the hearings last summer had saved the HSE, as the consultants’ paymaster, approximately €440 million since it first arose, and that it continued to save €17.5 million a year at that point.
The doctors’ legal team said the true saving was 60 per cent less than that because the sums quoted were a gross sum that did not account for income tax and social insurance contributions returning to the exchequer.
In her decisions, adjudicator Orla Jones found favour with the State’s arguments.
Noting the parties’ submissions on the ruling of the Court of Justice of the European Union in Horgan and Keegan rejecting a similar claim taken by teachers given less pay as new entrants during the austerity period, Ms Jones wrote that the “appropriate comparison” point for the doctors was their age on the date of their recruitment.
According to the statistical evidence produced, Ms Jones wrote, the ages of the earlier and later hires on first appointment to consultant grade did not differ significantly.
“I am satisfied that the complainant was paid at the lower rate due to having been appointed as a consultant at a later date, by which time a 30 per cent cut in salaries had been introduced,” Ms Jones wrote.
She also accepted that each of the comparators identified had the higher pay because they were hired earlier and because “red-circling” was being practised by the employer.
Ms Jones said grounds other than age explained the difference in pay and that the situation was therefore “lawful”, and dismissed all of the test cases.
Asked on Friday whether the IHCA intended to appeal the rulings, a spokesperson said the doctors’ union was “making no comment at this stage”. The claimants have until close to the end of this month to challenge the rulings at the Labour Court.
The test cases were brought on behalf of 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.
