Malaysian doctor wins equal pay case

 

Hospitals have been told to be alert for further race discrimination claims by non-European doctors after a Malaysian doctor won a precedent-setting equal pay case.

The "cautionary advice" has been issued by the Health Service Employers' Agency following a Labour Court determination in favour of Dr Bennett Eng under equality laws.

The court rejected an appeal by St James's Hospital in Dublin against an earlier equality finding that Dr Eng was discriminated against in relation to his pay on the grounds of race. Dr Eng took the equality complaint after he was given a training post as a junior doctor without basic pay, while his Irish and European colleagues were given salaried intern positions.

His case is the first racial discrimination claim to be successfully taken by an employee under the Employment Equality Act 1998. Central to his case is the system under which paid and unpaid, or supernumerary, intern posts are allocated. A specific number of paid intern posts are available to graduates every year in St James's and other training hospitals. If the number of graduates in a year exceeds the number of paid posts on offer, the remaining doctors can be offered supernumerary posts. Those allocated such posts do not receive basic pay, but do receive payments for overtime and on-call work.

Priority for paid posts, funded by the authorities, is given to Irish doctors or those from the European Economic Area - the 12 EU states and Norway, Iceland and Liechtenstein.

Paid intern posts are in the first instance allocated on the basis of medical exam rankings. However, notwithstanding examination results, citizens of Ireland and other EEA countries are given priority over non-EEA citizens. In Dr Eng's case, an Irish graduate who ranked lower than him on merit was allocated a paid intern post, with a basic salary of some €2,000 a month.

The hospital contended its allocation of paid intern posts was justified under work permit rules governing the hiring of non-EEA workers such as Dr Eng. Before a work permit can be granted, employers must show it was not possible to fill the vacancy with Irish or other EEA nationals, who do not require work permits.

The hospital had brought the Labour Court appeal, saying it wanted the court to decide on what it maintained was an apparent clash between Irish law banning workplace discrimination and rules governing the hiring of non-nationals. The court's determination casts a doubt over the entire system of appointments to supernumerary posts.

Legal representatives for St James's Hospital told the court it employed a significant number of staff of different nationalities and had always been "fastidious to ensure that all its staff are treated equally regardless of their national origin".

The court accepted that hospital management "acted at all times without discriminatory intent" towards Dr Eng or any other employee. However, it said that motivation was not a decisive factor and the hospital's "accepted bona fides" could not defeat Dr Eng's legal entitlement to equal pay.

In response to the Labour Court determination, the HSEA has issued a memo to employers pointing out that further claims may be forthcoming.

"We are giving a little bit of cautionary advice to employers who may get claims.

"We are telling them that if you do, let us know and we will check them off to see if they are the same as Dr Eng's case," said Ms Elva Gannon, the head of the agency's Employer Advisory Service.

A spokesman for St James's Hospital said it would not appeal the Labour Court determination.