The State has given "three different stories" to explain how one director of the Irish Prison Service has ended up earning €37,000 a year more than its other directors, the Workplace Relations Commission has been told.
Two serving directors and one former acting director claim it amounts to discrimination because they are younger, and in one case, female.
They also say they are entitled to have their six-figure salaries boosted to the €142,892 being earned by the current director of care and rehabilitation, Fergal Black.
Operations director Don Culliton, ICT and governance director Donna Creaven, and former acting director of HR Trevor Jordan, have each accused the service of ageist pay discrimination in claims under the Employment Equality Act 1998.
Ms Creaven has further alleged discrimination on the grounds of gender.
The State's position in all three cases is that the comparator identified, Mr Black, enjoyed the higher rate of pay on foot of a higher salary sanctioned for the medical director appointed permanently to oversee prisons in 1993.
This was then carried through to the incumbent because of hiring pressures during decentralisation in 2007.
At separate equality hearings yesterday, the situation was described as "red-circling" by State counsel Mary-Paula Guinness BL, who said there was a "clear understanding the role was different" in the past and a requirement to pay more to attract a satisfactory candidate.
However, the State has conceded that "like work" was being performed by the four directors from "a date post-2 July 2018", following changes to the management structure at the Irish Prison Service.
The tribunal has been told that the director who succeeds Mr Black, who was said to be close to retirement, will be paid the same salary as the other prison service directors following the restructuring of the top level of prison service management and the appointment of a clinical director.
Former Prison Service director-general Brian Purcell said in evidence that Mr Black's directorate predated the foundation of the prison service.
It had been set up in response to a responding to a "highly critical" report into prison medical services in the mid-1980s by Dr TK Whitaker.
Mr Purcell said officials at the Department of Justice had experienced difficulty trying to find medical professionals to take the job as director of prison healthcare and said they had had pressed the Department of Finance to approve funding for permanency and an enhanced salary with superannuation.
Although officials originally sought a higher rate of pay, Mr Purcell said the post was eventually approved with a salary of £44,880 - one point down from the top level of the scale for an assistant principal officer in the civil service at the time.
"It was being paid at a level around what might have been the pay for a consultant psychiatrist at the time," Mr Purcell said.
The first permanent appointee, a medical doctor, stayed in the role from 1993 to 2007, retaining his original terms and conditions when the Irish Prison Service was established as a separate agency from the Department of Justice in 1999, Mr Purcell said.
When the Prison Service's headquarters were to be decentralised from Dublin to Portlaoise in 2007, the original post-holder - in common with 85% of the agency's employees - turned down the move and was given a transfer to another public service post.
Longford "wasn't as attractive" to potential candidates for the directorship, so the absolute requirement for a medical qualification was dropped - allowing for candidates with seven years' management experience to apply, Mr Purcell said.
Mr Black was ultimately appointed on foot of that competition, the tribunal was told.
Mr Purcell said the premium in pay for the medical directorship reflected the fact that the director had "ultimate responsibility" for prison healthcare and would have to make decisions overruling medical professionals on operational grounds.
Mr Culliton put it to Mr Purcell that the statutory prison service rules established in 2007 required the appointment of a medical professional to the prison service healthcare directorship.
"In what circumstances is it okay to ignore what the law says?" Mr Culliton asked.
"We weren’t ignoring what the law says. We weren’t ignoring what’s in the prison rules," Mr Purcell said, but accepted when pressed by the adjudicating officer that they had not appointed a medical professional when the post was advertised in 2007.
Mr Black said in evidence that he was "never" told verbally or in writing that he was being "red-circled" but gave evidence that that he had been made aware at a management meeting that after his retirement the directorship pay would be reduced to match that of the other directors.
Mr Black added that he would have been unlikely to give up his former job as a HSE manager and relocate from Dublin to Longford to take up the position in 2007 if it had not been advertised at the higher rate.
Mr Jordan said he had moved on from the prison service, but was claiming for alleged pay discrimination during his tenure as acting director of HR between 14 June 2021 and 16 October 2022.
"I was paid last Thursday and Mr Black was paid last Thursday. It started in 2007, but the most recent act of discrimination was last Thursday when both of us got paid," Mr Culliton said.
Mr Culliton said the state’s "red-circling" defence had only emerged shortly before a preliminary hearing in the case earlier this year and had not been referred to by the Prison Service before.
He said that he, as the prison service’s former HR director, was never aware of any policy of red-circling - and argued that the adjudicating officer had to accept that he had made out a prima facie case of discrimination, shifting the burden to the State to disprove it.
Mr Jordan said he was adopting Mr Culliton's submissions as his own.
Barrister Rosemary Mallon observed proceedings from the public seating during a joint hearing of the cases of Mr Cullliton and Mr Jordan, but appeared as Ms Creaven’s representative when her client’s case was called on later and the facts being relied upon by the State were heard again.
"We’ve three different stories of red-circling. The story that red-circling was in 2018 arising out of the [new clinical director] scenario the first argument - but there’s no evidence," Ms Mallon said.
"Then the State made a second argument through Mr Purcell, the director general, in 2007; his evidence was that [they] couldn’t get anyone to go to Longford – that is now being put forward as red-circling," she said.
"Mr Purcell, in fairness to him, says 'I don’t recall’ and [that] maybe red-circling happened when [the original director] is appointed in the early 90s," Ms Mallon added.
"Ms Guinness doesn’t have a client from the Department. Nobody has come along for the Department to say this is when the red-circling happened, and why. Nobody has even produced a red-circling policy. Paper does not refuse ink, particularly with the State - not a shred of paper," Ms Mallon added.
In response, Ms Guinness said: "I object to Ms Mallon’s description of the State’s case as 'three different stories’. I find that unprofessional and quite trite," she stated.
"What we have is a lot of vocal noise about red-circling. It’s not a legal term. There’s not a requirement to have a policy for red-circling," she said, adding that there was case law from the High Court on that point.
"The evidence was very, very clear from Mr Purcell - there was a very clear understanding [in 2007] that the role was different. There was a requirement to ensure a satisfactory candidate when they had 85% attrition," she added.
Maintaining the terms and conditions of a key role such as the prison service medical director was "exactly what red-circling is about", Ms Guinness said.
"I say there is no discrimination," Ms Guinness said, adding that the differential in pay was "objectively justified in line with the case law".
Adjudicating officer Breiffni O’Neill is now considering his decisions in all three complaints following yesterday’s hearings and is to issue his decision in writing to the parties in 2024.
Mr Culliton is also awaiting a decision on his separate claim of whistleblower penalisation brought against the Prison Service under the Protected Disclosures Act 2014, which was heard in August this year by a separate adjudicator.
In the spring, Mr Culliton also appeared before the WRC as a main witness on behalf of the Prison Service in its defence of a gender discrimination complaint by the former Midlands Prison governor Ethel Gavin, with that complaint also awaiting decision.
