Third, the primary burden is on the appellant to prove that the conditions in section 9(a)(1) of the Equality Law are met, i.e., equality in qualifications, the result of which is the transfer of the burden of proof to the employer. On the other hand, the hospital was not required to prove that Dr. Ashkenazi's skills were superior to the appellant's. Therefore, even though the appellant's revolt in the summaries against the testimony of Prof. Merin, according to which conversations with the department's doctors showed that Prof. Ashkenazi's qualifications were superior to the appellant's, is justified, given that this is a testimony that was not detailed in Prof. Marin's affidavit, the lack of weight to this testimony does not constitute a substitute for positive proof by the appellant that her skills did not fall short of Dr. Ashkenazi's. Beyond what is required, the appellant's testimony about what Prof. Rowe said to her supports the argument raised by Prof. Marin, since according to her testimony Prof. Rowe told her that he did not see a special medical need for which it was appropriate to recommend to the Director General an extension of the appellant's period of employment.
Fourth, the testimonies on behalf of the hospital regarding the lack of a basis for a comparison between the appellant and Dr. Ashkenazi in the first place were not contradicted, taking into account the fact that Dr. Ashkenazi was the director of a day hospital and the appellant was a clinical and investigative physician, and that this was in fact a different professional essence and therefore a different "equality group".
- The appellants argued that the Regional Court erred in its determination regarding the failure to transfer the burden of proof to the hospital, as detailed below. First, the Regional Court erred in determining that the Appellants should have presented expert testimony to compare the Appellant's expertise with that of Dr. Ashkenazi, and ignored the testimonies and the many pieces of evidence brought by the Appellant regarding her skills, experience and professional achievements, from which clear data emerged about the Appellant's expertise, which the Hospital did not dispute, which are the primary evidence and even beyond that, which justify transferring the burden of proof to the hospital; Both the Appellant and Dr. Ashkenazi were employed as internists. Rank 8+ in the rank of doctors. Although Dr. Ashkenazi had managerial experience, the appellant had another expert in the treatment ofCLL patients, an expertise that Dr. Ashkenazi does not have, and she also ran a thriving research laboratory. Second, the Regional Court ignored the fact that the hospital did not summon relevant witnesses to testify – Prof. Rowe (director of the department at the time of her retirement) and Dr. Ashkenazi, who are the relevant witnesses with regard to the question of why, despite her expertise, the appellant was forced to terminate her work at the age of 67 and why Dr. Ashkenazi was preferred over her, and for this reason the burden of proof was also shifted to the hospital's shoulders; Third, the data that emerge from the documents that the hospital discovered as part of the document discovery process also indicate clear consequential discrimination against female doctors who have reached retirement age at the hospital, and they are also the primary evidence of discrimination that shifts the burden of proof to the hospital.
- The hospital argued that the Regional Court was correct in its determination that the conditions for reversing the burden of proof, which were determined in this matter in case law, were not established, and there is no room for the National Court to intervene in this determination; The question of the appellant's qualifications is irrelevant, because the relevant question is the question of the necessity of the appellant's role after she has reached retirement age, since there is no connection between qualifications and retirement that is required from the employee's reaching retirement age. and the question of necessity is not listed in sections 9(a)(1) and 9(a)(2) of the Equality Law; since no evidence of discrimination was presented at all, or since there is room for comparison of the appellant with any other doctor, there was no room for reversing the burden of proof; only when the decision is based on a "protected" trait is the employer to prove that there was no discrimination, whereas in the matter of qualifications, the burden of proof is on the appellant.
- The Commission argued that the case law determined that in order to transfer the burden of proof to the employer, the burden imposed on the employee is relatively light, and that in view of the importance of protecting the value of equality, the difficulty of proving discrimination, and the disparities in power and information that exist between an employee and the employer, strict threshold conditions should not be set for reversing the burden of proof. In the case at hand, the Regional Court raised heavy requirements for the transfer of the burden of proof, when it was of the opinion that the burden required for the transfer of the burden is heavy and is as heavy as the proof of the claim itself. According to the Ombudsman's approach, the appellant met the burden imposed on it in order to transfer the burden of sight to the hospital due to the lack of a written procedure in the period relevant to the proceeding regarding the considerations that will be considered in deciding whether to allow the continuation of employment after retirement age; Due to the fact that the hospital stated in the pleadings that one of the considerations is to fill a managerial position prior to retirement, and therefore since more men are employed in managerial positions, inherent discrimination may arise; the lack of relevant numerical data from the hospital regarding the appellant's retirement year (2020) regarding the physicians who requested and were approved to continue working after retirement age; questions and apparent contradictions arising from the data presented by the hospital; As to the comparison of the appellant to Dr. Ashkenazi on the face of it, the basic facts of both are similar both in terms of rank and expertise, and the requirement to bring expert testimony constitutes an imposition of a heavy burden on the appellant with regard to the transfer of the initial burden and is inconsistent with the case law.
- After examining the arguments of the parties and the Commission, we reached the conclusion that the appellants' claim that the burden of proof was shifted to the shoulders of the hospital was accepted is lawful. Our reason for this will be detailed below.
- As stated, the Regional Court rejected the appellants' argument on the grounds that the appellant should have proved the claim that "her qualifications did not fall short of Dr. Ashkenazi's" and that this argument was an "expert claim" that the court had no tools to examine it without expert testimony, and that the appellants should have presented expert testimony comparing her skills to those of Dr. Ashkenazi. These determinations of the Regional Court are inconsistent with the law and case law, and this on two levels: one – the substantive level,e., what the appellants had to prove in order to transfer the burden of proof to the hospital; the second – the quantitative level, the degree of proof or the evidentiary threshold that the appellant had to meet in order to transfer the burden of proof to the hospital.
- As to the manner of examining whether there was room to transfer the burden of proof to the hospital: the Regional Court ruled that the question of transferring the burden of proof should be examined on the basis of the provision of section 9(a)(1) of the Equality Law and not on the basis of the provisions of section 9(a)(2) of the Equality Law, in view of the fact that the appellant was not dismissed but rather retired in accordance with section 4 of the Retirement Age Law. And this will also be the starting point for the hearing of the appeal. However, in accordance with case law, section 9 of the Equality Law does not prescribe an exhaustive and exclusive arrangement for the transfer of the burden of proof, and the employee can meet the evidentiary threshold required to transfer the burden of proof even if he proves other relevant circumstances. In our case, the Regional Court did not examine at all whether there was room to transfer the burden of proof to the hospital due to other circumstances, and we will examine later also whether there was room to transfer the burden of proof due to other circumstances.
- As to the substantive level: insofar as section 9(a)(1) of the Equality Law applies, the appellant is not required to prove that her qualifications exceeded those of Ashkenazi or were even equal to his skills. Section 9(a)(1) of the law states that the employee must prove that he has met the conditions or qualifications that the employer has determined regarding hiring. Since the hospital has not determined qualifications or conditions for work after retirement age, at most the appellant is required to prove that she has the qualifications to perform the job. The appellant certainly met this condition in view of the fact that she performed the role of a physician in the hematology department for 28 years. It should be noted that even if this was a procedure similar to a tender or acceptance process, according to which the hospital must choose between the appellant and Dr. Ashkenazi, all that was required of the appellant was to prove that she had the qualifications to perform the job, and not that her qualifications were equal to or equal to those of Dr. Ashkenazi. This is also because the information about the other employee's qualifications is not in the employee's knowledge, but rather in the employer's knowledge. This is all the more true in our case, when it was not argued by the hospital that due to a limitation of standards it is possible to employ only one of the two – the appellant or Dr. Ashkenazi after retirement age, so that the appellant's employment after retirement age will require the termination of Dr. Ashkenazi's employment. In this context, it should be noted that in the hospital's summaries (paragraphs 1f) and 1(g)) it was argued that Dr. Ashkenazi's employment was "irrelevant to her standard" [of the appellant – L.G.] and that the appellant's claim that she was forced to resign because Dr. Ashkenazi holds her standard is a "great deception" and a baseless false accusation. As stated, as of the date of the appellant's retirement, the hospital did not publish a written procedure detailing the criteria or requirements or qualifications on the basis of which the hospital decides whether to approve the continuation of employment after the doctor has reached the mandatory retirement age. Therefore, there were no other or additional qualifications or conditions that the appellant had to prove beyond her qualifications to fulfill the role of a physician in a department or a day hospitalization unit, as she had done for many years. As a result, the Regional Court's determinations that the hospital did not have to prove its claims regarding the gap between the appellant's qualifications and Dr. Ashkenazi's, but rather that the appellant had to prove positively that her qualifications were superior, as well as its determination that no weight should be attributed to the fact that the hospital raised a suppressed version regarding the opinion of the department's doctors on Dr. Ashkenazi's preference over the appellant, are not acceptable to us. Contrary to the Regional Court's ruling, when it was proven that the Appellant was qualified to perform the job, the hospital had to prove the reasons why it did not respond to her request to continue working after retirement age, and inter alia why Dr. Ashkenazi was allowed to work for many years after retirement age as an ordinary doctor. Insofar as the reasoning for this is that Dr. Ashkenazi's qualifications are superior to hers or that there was room for his preference due to other data, the hospital should have raised these claims explicitly and also proved both Dr. Ashkenazi's qualifications or the other data that justified his continued employment, as well as the connection between them and the decision to allow him to continue working after retirement age. Insofar as the hospital's argument is that due to the appellant's skills or deficiencies in functioning there was no reason to grant her request, the hospital should have raised this claim explicitly and proved it.
- As stated, in accordance with the case law, it is possible that the burden of proof will be transferred to the employer even if the conditions set out in section 9 of the Law are not met, when the entirety of the circumstances of the case must be examined. Therefore, in any event, and certainly in view of the fact that the Regional Court accepted Prof. Marin's version that it is not possible to compare the appellant's qualifications with those of Dr. Ashkenazi at all, the Regional Court should have examined whether the burden of proof should be shifted in light of other circumstances. We will elaborate:
According to Ms. Shapira's version in the affidavit (paragraph 18 of the affidavit), the consideration of whether to continue employing an employee after retirement age is the needs of the hospital, and especially whether it is possible to find a replacement for him or whether his expertise is in a rare field in which it is difficult to find doctors. In addition, sometimes, when the doctor is a sought-after physician in terms of the profession or personally, his employment continues in the framework of a private medical service or in another framework "in order to maximize the economic capabilities of this profession" (paragraph 19 of the affidavit). Prof. Marin testified about the same considerations. According to Ms. Shapira and Prof. Merin, in their affidavits in the appellant's case, the guiding criteria for her continued employment after she reached retirement age were not met.