Just 63 hospital consultants hired on lower pay than their incumbent colleagues have transferred to the new SláinteCare contract since it launched in March, a Department of Health official has admitted.
The official was giving evidence to the Workplace Relations Commission, at a hearing into age discrimination claims by a group of consultant doctors against the State over austerity-era employment contracts which pay them 30% less than colleagues hired before October 2012.
Lawyers acting for the hospital consultants said the complainants were subject to a "uniquely harsh" measure compared to other public servants and were now left with a choice between continuing to accept the lower pay or take up "less satisfactory" employment terms by agreeing to give up seeing their private patients during their ordinary working week.
"They're not exactly voting confidence," said a barrister for the complainants, who say the lowered pay scale for new hires after 1 October 2012 amounts to age-based discrimination.
Specialist doctors Soloman Asgedom, David Bradley, Gabrielle Colleran, Edward Loane, Olka Mikulich, Nikolai Miroue, Julie O’Brien, Selina Morgan-Pillay, Declan O’Rourke, James Paul O’Neill and Sandhaya Namesh Babu have lodged the complaints under the Employment Equality Act against the Minister for Health, the Minister for Finance, the Minster for Public Expenditure and Reform and others.
The HSE and a grouping of voluntary hospitals represented by Ibec are notice parties to the claims, which are denied by the State. The hospital consultants are represented by the Irish Hospital Consultants’ Association.
Giving evidence Louise McGirr, an assistant secretary heading up the Department of Health’s resources division, said the reduction in salary offered to new consultants in 2012 had to be seen in the context of the State finances at the time, along with the long-term need to expand the healthcare workforce.
She said consultants’ pay was "particularly high" at that time in comparison with other OECD and EU states.
"People will remember the troika and the process at a macro level in the Irish state. We’re looking at consultants who are, relatively, paid a lot," she said. "We are still, even under the 2012 contract, much higher than European counterparts," she said.
The new contract on offer under the SláinteCare reforms, which requires consultants to fulfil a full work week of 37 hours before carrying out any private work – along with committing to weekend and shift work – would pay the same as the pre-2012 contract, Ms McGirr said.
"Every existing consultant has a right to take up this contract," Ms McGirr added.
Cross-examining Ms McGirr, Gerard Durcan SC, for the doctors, put it to her that there had been three "significant events" affecting the employment terms of hospital consultants in the last 20 years – referring to the 2008 consultants’ contract, the 2012 contract at issue in the case, and the SláinteCare contract.
"In the health sector, did anyone else get a 30% [cut] on top of FEMPI," Mr Durcan asked, referring to the austerity-era pay cuts and pension levy imposed on public servants.
"Not to my knowledge," Ms McGirr replied.
Counsel said the tribunal had heard the evidence of his clients and put it to her that it was understandable that they "might be a bit upset in uniquely experiencing this".
"The evidence is consultants were paid well above average," Ms McGirr said.
"We’re talking about cuts of 30% in the health service. What about the public sector in general?"
"We all took cuts. The 30% was not applied to existing contract holders," Ms McGirr said.
Counsel put it to her that there had been no analysis done to establish an "objective justification" for the "uniquely harsh" pay differential affecting his clients.
Ms McGirr countered that it "was not done to an existing group of workers".
Mr Durcan also challenged Ms McGirr on a statement in her summary of evidence in which she stated that allowing private patients to be treated in a public setting amounted to "inefficiencies" and "perverse incentives".
"That’s rather strong language. If there is such perverse incentives it is because people go out and get private health cover… If it’s perverse it’s because it’s been in legislation since 1970," he said.
"Clearly, it was a policy of a time. We incentivised people by tax relief on health insurance. That’s the opposite of SláinteCare – SláinteCare is the cross-party conclusion this is not the way they want the health service to be," the witness said, adding later that it was "no longer the wish of the Oireachtas".
"Doctors who lost out in 2012, they can take the SláinteCare contract, but the price they'll have to pay is less satisfactory conditions than their colleagues," Mr Durcan said.
"It depends how you define satisfactory. Some value the flexibility," Ms Durcan said, adding that "many" doctors were "frustrated" with the status quo.
"How many have [signed] at this stage," Mr Durcan asked.
"63," Ms McGirr said, adding that the figures were "a couple of weeks" old.
"Hardly voting confidence," Mr Durcan said.
"We see it as very positive… It was always planned this way, that it would ramp up from private to public," Ms McGirr said.
She added that 500 new consultants would be hired this year to fill vacancies created by turnover of posts, replacing consultants on old contracts, and that there had been 600 expressions of interest in SláinteCare contracts from incumbents.
"But up to now, 63," Mr Durcan said.
"We’re quite happy with it. We see it as quite positive," Ms McGirr said.
Mr Durcan disputed the relevance of pay comparisons between Ireland and other OECD and EU countries, arguing that the relevant comparators for Irish hospital consultants were English-speaking jurisdictions such as the US, UK, Canada and Australia.
"It’s not my personal view. It’s the doctors’, and they’re voting with their feet. They’re on Bondi Beach," he said.
Department of Health economist Claire Doyle said in evidence that the health service had been successful in increasing the number of consultants it employed from 2,917 in 2012to 4,215 in February this year – an increase of 46%, she said.
She said that without the 30% pay differential, the health service would have spent €440 million more on employing specialist doctors since 2012, net of €41 million in pension contribution.
Ms Doyle said the ongoing differential in pay saved the health service €17.5 million.
Mr Durcan countered that the real reduction in cost was much lower, arguing that 60% of the €481 million in pay differential arrears would have been recovered by the exchequer as income tax and PRSI.
Earlier, the tribunal heard from statisticians engaged separately by the hospital consultants’ association and the State to carry out age analyses of the age and employment histories of consultant doctors.
"The pre-2012 consultants are substantially older – on average ten years older than the post-2012 cohort," said Dr James Sweeney, who gave evidence as a witness for the complainant side, adding that the difference was "statistically significant".
He said there had been an increase in the average age of hospital consultants of 1.1 years per annum since the contract was brought in.
Cross-examining Dr Sweeney, Michael Howard SC, for the State, said: "If you and your father are appointed to a [role] no matter what criteria you apply, there will always be that age gap."
"Yes, if you use a fixed point in time to categorise two individuals," said Dr Sweeney.
The State’s position is that the age of first appointment was what ought to be compared, calling statistics expert Professor Simon Wilson, to give evidence.
Professor Wilson said his analysis showed the average age of a consultant on first appointment going up since the year 2000 rising by about six weeks per calendar year.
"That trend is fairly consistent across the period from 2000 to 2022. [It] predates the salary measure and is faster prior to it," he said, stating that the average age increase prior to 2022 was seven months per calendar month.
Mr Howard said in a submission that this contradicted the suggestion of the complainant side that the lower pay was holding back recruitment.
The case is set to continue later in the summer on a date yet to be confirmed publicly by the WRC.
