Following Labor Conflict 8924-07-10 Vladislav Avramov versus General Medical Services (Ha’Emek Medical Center) (Feb. 9, 2014). The issue of discrimination in the workplace is multi-faceted. I wish to highlight some of these facets by a “real-life” example. A group of sanitary employees who were employed in the operation-theatre of a hospital received special compensation for evening duty (“the Special Compensation”). After several years, the hospital decided to employ an on-call employee for evening duty instead of the sanitary employees. As a result, the necessity to employ the sanitary employees in evening duty was obviated. Following negotiations with the employees’ committee an agreement was reached according to which a closed list of sanitary employees who had been paid the Special Compensation would continue receiving it until retirement (“the Entitled Employees”). Two additional sanitary employees were added to the list of Entitled Employees – both of whom had been employed at the time the agreement with the employees’ representative body had been reached, though neither had been employed for evening duty (“the Additional Employees”). Sanitary employees who had not been included in the list of Entitled Employees filed a claim to receive the Special Compensation on basis of discrimination (“the Claimants”). What is the correct legal analysis of this case? Were the Claimants discriminated against? If so, in comparison to which group of employees and what is the appropriate remedy? Discrimination can be defined as making a distinction between otherwise equal individuals on the basis of a prohibited or irrelevant criterion. There are criteria such as race, gender, age and religion that are prohibited by law such as the Equal Opportunities in Employment Law of 1988 (“the Equality in Employment Law”). There are other criteria that are not prohibited by law but that are irrelevant in the workplace and therefore may be prohibited by the general principle of equality. The Equality in Employment Law applies to all employees and employers. The general principle of equality applies to public entities; its applicability to private entities is at a lower degree. In our case, the employment conditions of the Claimants were clearly deficient as compared to those of the Entitled Employees or the Additional Employees, since, of all the employees belonging to the three groups, only they did not receive the Special Compensation, though all said employees were performing the same duties and none were performing evening duty. Did this deficiency amount to discrimination? And if so, vis-à-vis which group and what was the appropriate remedy? Clearly, a distinction can be drawn between the Entitled Employees and the Claimants; whereas the former had previously performed evening duties, the latter had not. It was also established that the Entitled Employees were being paid the Special Compensation in compensation for the injury they incurred as a result of the change initiated by the hospital. The Claimants however, had never been employed for evening duty and had not incurred any injury as a result of the change initiated by the hospital. Hence the distinction between the Entitled Employees and the Claimants – in respect of the Special Compensation – was based on a relevant criterion that precluded discrimination. Therefore the Claimants had not established a case of discrimination vis-à-vis the Entitled Employees. Before proceeding, and in order to understand the rationale for the payment of compensation in such a case, let us return to the point in time when the hospital management appointed an on-call evening employee and obviated the need to employ the operation-theatre sanitary employees for evening duty. Clearly in such a situation, management had a prerogative to stop employing the sanitary employees for evening duty and to stop paying them the Special Compensation and case law allows this. However, case law also provides, that employees who receive, over a lengthy period of time, remuneration for special duties performed, have a reliance interest protectable by law and that therefore, the decision to stop the special duties and its remuneration should be receded by a hearing and by negotiation with the employees’ committee as to the compensation to be paid to the employees for the injury to their reliance interest. This is exactly what the hospital did and the negotiation yielded the agreement that the Entitled Employees be paid the Special Compensation until retirement. Although case law does not mandate paying such compensation until retirement, the court did not outlaw such payment in this case since the date of retirement of the employeeswas not long ahead. However, as we have seen, the negotiation did not end there and the Additional Employees were added to the list. The Additional Employees had never performed evening work and had no reliance interest that could justify payment of the Special Compensation. The distinction between the Additional Employees and the Claimants could not therefore be based on the rationale of compensation for injury incurred. Moreover, the reasons why the hospital had decided to add the Additional Employees to the list of Entitled Employees remained obscure and the court did not rule out the possibility that the decision to pay the Special Compensation to the Additional Employees was unlawful, though the question was not decided, inter alia, as the Additional Employees were not party to the proceedings. The sum of the above is that the hospital did not establish that the distinction between the Additional Employees and the Claimants – in respect of the Special Compensation – was based on a relevant criterion that precluded discrimination. Therefore the Claimants had established a case of discrimination vis-à-vis the Additional Employees. What is the appropriate remedy for such discrimination? Does this discrimination in itself entitle the Claimants to receive the Special Compensation? As we have seen, the reason for adding the Additional Employees to the list remained obscure. Prima facie, the Claimants had not been distinguished on the basis of a criterion prohibited by the Equality in Employment Law. Therefore, the legal discussion did not take place in the framework of the Equality in Employment Law but rather in the framework of the general principle of equality. As mentioned, the general principle of equality applies to public entities and to a lower degree to private entities. There was no doubt that the hospital is a public entity subject to the principle of equality. The appropriate remedy in a case of discrimination can be awarding the party injured by unjustified discrimination a remedy of enforcement of the benefit unjustly denied. The court has authority to make such an award. However, the authority is discretionary. In this case, the court did not find it appropriate to award this remedy to the Claimants. The court ruled that the fact that the Additional Employees were paid the Special Compensation, did not in itself entitle the Claimants to receive it and their claim was dismissed. In this regard the court noted that years had elapsed since the decision had been taken to pay the Special Compensation to the Additional Employees and that the reasons behind the decision (including the lawfulness of the payment) remained obscure. The court also noted however, that had the Claimants submitted their claim soon after the decision had been taken to pay the Additional Employees the Special Compensation, and had it been established that the decision was lawful, the court might have awarded the Claimants with a remedy of enforcement since the hospital, as a public entity, is subject to the general principle of equality. The court did not therefore rule out the possibility of awarding a remedy of enforcement to the injured party in case of discrimination based on an irrelevant criterion albeit not one prohibited by law. As mentioned, the general principle of equality applies differently to private versus public entities. In the case of a private entity, discrimination based on a criterion that is irrelevant but not prohibited by law, will only rarely entitle the injured party to a remedy of positive award. This is an important legal and practical difference between public and private entities. Would the result have been different had the discrimination been based on a criterion prohibited according to the Equality in Employment Law? Also according to the Equality in Employment Law the remedy of a positive award of the benefit unlawfully withheld on basis of a prohibited criterion is discretionary. However, the Equality in Employment Law specifically provides that prohibited discrimination, if it is expressed in employment conditions, cannot be remedied by detracting from the rights of another employee or worsening his/her employment conditions. This provision may indicate that the primary remedy for discrimination on basis of a criterion prohibited according to the Equality of Employment Law is a positive award to the injured party (unless there are cogent reasons against such a remedy). A supportive argument for such a remedy is that it clearly can act as an effective deterrent against discrimination on basis of prohibited criteria since its consequence is that the discriminating employer will be obliged to provide the same employment conditions to the injured employees and therefore will not gain by discriminating. As mentioned, the Equality in Employment Law applies equally to all employers and employees. Therefore, in case of discrimination on basis of a criterion prohibited according to said law, there should be no difference in the type of remedy in case of a public or a private entity.
Shoshana Gavish is a partner at S. Horowitz & Co., where she heads the firm’s Employment Law Practice Group. Practicing exclusively in the areas of private, public and international employment law, Shoshana advises on all aspects of the employer-employee relationship, including hiring and termination policies, individual contracts, employee benefit and compensation packages, restrictive covenants and confidentiality agreements, collective bargaining agreements, individual and collective disputes and class actions.