EDA2431

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00013621 (CA-00018112-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 14 October 2019.

The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Somy Thomas of a decision of an Adjudicator Officer (ADJ-00013621) under the Employment Equality Acts 1998 – 2015 (“The Acts”). The Adjudicator did not find any incidents of discrimination within the cognisable period for the complaint. 

Somy Thomas lodged an appeal of that decision to the Labour Court on 14 October 2019. Following an elongated history of attempts by the Court to convene hearings of this and other related appeals to the Court, the division assigned to hear those matters ceased to exist due to retirement. The within appeal was then assigned to another division of the Court, and that division conducted a case management meeting on 7 May 2024 and heard the appeal on 23 July 2024.

The Court heard submissions from both parties. An opportunity was afforded to the parties to give oral evidence. No witness testimony was proffered by either party.  Both sides confirmed that they were satisfied that they had been given an opportunity to make all relevant submissions to the Court.

For ease of reference the parties are given the same designation as they had at first instance. Hence Somy Thomas is referred to as “the Complainant” and Beaumont Hospital is referred to as “the Respondent”.

Summary of Complainant’s Case:

The Complainant is originally from Kerala in India. She commenced employment as a staff nurse with the Respondent’s hospital in June 2004.

The Complainant submits that she participated in 14 separate promotion/recruitment processes in the period from August 2007 to January 2018 and was discriminated against by the Respondent on the grounds of race in that she was consistently passed over for promotion in favour of candidates who were less experienced and/or less qualified.

In competitions held in 2009, 2011, 2013, 2014, 2015 and twice during 2016, the Complainant was passed over in favour of less experienced Irish nurses. In 2014, the Respondent justified its decision on the basis that she had no management experience when she had years of management experience in India. In competitions in 2015 and 2016, marks did not add up, competency scores were missing, certain marking sheets which would have favoured the Complainant were left blank and there were discrepancies in competency scores. The Respondent refused to furnish the complainant with written interview notes.

The Act allows a Complainant to bring a claim in respect of a series of discriminatory acts, where the most recent act complained of occurred within six months of bringing her claim. As the last act of discrimination complained of falls within that time period, all prior acts of discrimination are validly before the Court.

The repeated and unexplained passing over of the Complainant in favour of less experienced Irish colleagues are established facts from which discrimination can and should be inferred. No adequate explanation was provided by the Respondent for not appointing her to any of the positions.

The complete lack of transparency in the Respondent’s decision-making process included unprecedented role splitting, blank competency score sheets, missing competency scores sheets, competency scores which do not add up, scores which are wildly disparate and opaque processes.

Furthermore, there are obvious and clear statistical discrepancies between the number of overseas nurses employed by the Respondent which account for 40% of total nurses but only 13% of nurse managers. Such numbers have prevailed since the Complainant joined the Respondent’s organisation and have continued despite almost 45% of the total nursing workforce being overseas nurses.

The Complainant relies on Mey v St James's Hospital DEC-2007-016, Khandarsing v HSE South DEC-E2016-027, Fagan v The Revenue Commissioners DEC-E2—8-004 and Sheehy-Skeffington v. NUI Galway DEC-E2014-078.

Summary of the Respondent’s Position

The assertion that the Complainant was not promoted on multiple occasions in favour of less qualified, less experienced, white Irish colleagues is denied. The Complainant formed a view that because she was unsuccessful in previous promotional competitions that her lack of success in subsequent competitions was based on racial discrimination.

A preliminary matter arises in relation to time limits. Any incidents alleged over six months prior to the lodging of the complaints are time barred. No application is made for an extension of time, nor is there reasonable cause to extend time to bring those allegations within the jurisdiction of the Court. Without prejudice to that, if it is alleged that incidents outside of the six-month time limit form a continuum, the Respondent submits that each competition was a standalone event and not related.

The Complainant did not attend for interview for the October 2017 position, despite being given a later interview date to accommodate her illness. The Complainant interviewed for posts in December 2017 and January 2018.

The Respondent denies any procedural or substantive unfairness with the competitions held in October 2017, December 2017, and January 2018. The Respondent selected the best candidates for the post, which is demonstrated through the interview notes and scores sheets in each competition.

The Complainant is unable to point to any event during the interview process which could indicate a discriminatory bias on the part of the interview panel. The better candidate was successful based on merit through an objective and transparent recruitment process. It is clear from the scoring sheets that the panel preferred the successful candidate under several headings.

The assertion that the interview panel ignored the Complainant’s past management experience is denied. The competency-based interview process seeks to select the best person for the post, once candidates pass the eligibility criteria for the role advertised. The process is designed to elicit responses from candidates based upon their past experiences. The Complainant had many opportunities at interviews to illustrate and expand on her experience in India and Ireland. Her inability to translate and communicate her experience relative to her competitors within each competition was the reason for her lack of success. Technical and behavioural competencies are the core considerations in assessing a candidate's suitability for a position. The Complainant has been offered feedback coaching and assistance with interview techniques following campaigns. These offers of assistance were never taken up by the Complainant.

The Complainant alleges that she was the more experienced candidate based on her understanding that longevity is the primary consideration in assessing promotions. The Complainant’s definition of a “senior staff nurse” is self-defined and incorrect. She understands herself to be a “senior staff nurse” based on her years of service. The Complainant was not a “senior staff nurse,” as she did not meet the criteria for that position.

The competency-based interview scoring system is under constant review. The interview score structure in use prior to 2017 was reviewed to protect the process from subjectivity and bias and to ensure that it is an objective, fair and transparent process. A clear marking scheme is set out in advance of interviews. Questions are drawn up based on each criterion. The interview board decides the appropriate score for each selection criteria with the highest scoring candidate deemed competent in each area being the successful candidate.

Promotional opportunities in the hospital are merit based. While the Complainant provided many years of good service, she was simply not the best candidate for the positions that she applied for. The Respondent has a duty of care to provide the highest medical care, and this translates to ensuring those promoted to positions of management are the best candidates.

The Respondent objects to the assertion that there is a huge under representation of overseas nurses in managerial positions in the hospital. There is no source for the general statistics provided by the Complainant. The percentage of non-Irish nurse managers is in line with those in other large teaching hospitals in the Dublin area.

The Complainant has not established a prima facie case that could lead to an inference of discrimination. There is no substantial evidence to ground her complaints.

Relevant Law

Continuing discrimination

Section 77(5)(a) of the Acts provides: -

(a)  Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

Section 77(6A) provides: -

For the purposes of this section —

(a)  discrimination or victimisation occurs—

(i)  if the act constituting it extends over a period, at the end of the period,

Approach of the Court

The application of the above provisions was considered by this Court in Determination EDA1124 Ann Hurley v County Cork VEC, in which the Court decided that it was clear: -

“…in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit.  There can be practical difficulties in applying that provision.  There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.”

The Court must consider if all the incidents relied upon by the Complainant can be regarded as part of a continuing act of discrimination for the purpose of Section 77(5) of the Act.  Applying the principles identified in County Cork VEC, the admissibility of the claim in so far as it relates to alleged acts of discrimination in the period outside the time limit, depends upon the validity of the claim of discrimination which allegedly occurred within the time limit. The admissibility of those aspects of the complaint are also dependent upon some link being established between the occurrences outside the time limit, and those inside the cognisable period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.

The Court, consistent with its approach in County Cork VEC, must first consider whether any act or acts of discrimination occurred within the cognisable period for the within complaint before it can consider whether events outside of that period are part of a continuum or regime of discrimination and so fall within the jurisdiction of the Court. It is only if the Court forms such a conclusion that it can consider events which occurred prior to the cognisable period.

The Court proposed to the parties that it consider the claims of alleged discrimination that fall within the six-month cognisable period in the first instance. It suggested that if these occurrences were found to be an act(s) of discrimination the Court would then proceed to hear evidence in relation to all of the occurrences relied upon. If, however, these occurrences were found not to be an act(s) of discrimination the earlier complaints could not be entertained having regard to Section 77(5) of the Acts as they are outside the statutory time limit.

Both the Complainant and for the Respondent’s representative agreed to proceed in the manner suggested by the Court.

In support of her claim, the Complainant submits that there is a huge under-representation of overseas nurses in managerial positions in Beaumont Hospital. That assertion was refuted by the Respondent, which submits that the percentage of non-Irish nurse managers is in line with those in other large teaching hospitals in the Dublin area.

In County Louth Vocational Education Committee v The Equality Tribunal and Branigan [2016] IESC 40 McKechnie J. considered the role of the Tribunal when investigating complaints under the Employment Equality Act as follows: -

“… when considering the substantive issue, it must be remembered that the Tribunal inquires into referred incidents of discrimination: it looks at prohibited conduct of which it is notified. It has no function in a situation such as this to embark upon a wide ranging inquiry into discrimination generally, or to generally investigate such discrimination; it does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Tribunal. Rather, it determines what lawfully has been referred to it with a view to providing redress to that applicant for any discrimination as found. The Tribunal cannot as such freelance its inquiry.” Paragraph 36)

The Court’s jurisdiction in the within appeal is confined to hearing an appeal of the Adjudication Officer’s decisions. It has no authority to conduct a wide-ranging inquiry into discrimination generally.

What complaints occurred during the cognisable period?

The complaint was lodged with the WRC on 23 March 2018. Therefore, the cognisable period for initial consideration by the Court is the period from 24 September 2017 to 23 March 2018.

The Complainant contends that she was treated differently on the ground of race by the Respondent when she was unsuccessful in her application for three posts during that time, as follows:

• Respiratory Candidate Advanced Nurse Practitioner – October 2017
• CNM1 Respiratory Post – December 2017
• CNS Respiratory Post – January 2018
  
  

Respiratory Candidate Advanced Nurse Practitioner (October 2017)

The Complainant contends that she was subject to adverse treatment within the meaning of section 74 of the Act in relation to the competition for the post of Respiratory Candidate Advanced Nurse Practitioner because she lodged a complaint of discrimination against the Respondent to the WRC on 23 December 2016. The adverse treatment complained of was that the Respondent refused to extend the interview date. 

Failure to grant an extension of Interview Date

The Complainant was unable to attend for interview for thepost ofRespiratory Candidate Advanced Nurse Practitioner on 12 October 2017 due to a medical appointment and requested an extension. She contends that the refusal by the Respondent to grant her an extension was directly related to the fact that she had lodged a complaint of discrimination against the Respondent to the WRC on 23 December 2016 and that this amounts to victimisation within the meaning of the Act.

The Respondent rejects that assertion. It contends that the Complainant was treated if anything more favourably than other candidates, as she submitted a late application which was accepted although lodged one week after the deadline, and her request for a later interview date was granted.

When the above post was advertised, the Complainant was absent from work without access to her work emails. She said that she only became aware of the competition on her return to work, hence the late application.

The Court was referred to a letter dated 13 October 2017 from the Respondent to the Complainant’s trade union official which states, inter alia, as follows:

“I wish to advise that the recruitment team will grant an interview date extension as per your request however given the urgency to fill this role and HSE requirement that successful ANP candidates commence on Monday 23rd October 2017, the interview must take place in advance of Wednesday 18th October 2017...

…Ms Thomas applied one week late and it was agreed that her application, as an exception, would be included...”

The Complainant requested a further extension, which was denied. While she accepts that an extension was granted, she contends that a longer extension should have been granted to her as it was an external competition where longer notice periods should apply, and the post was not filled within the timeframe specified by the Respondent in its correspondence. In response to that assertion, the Respondent said that it could not facilitate a later interview date as the timelines were determined nationally by the HSE and so outside the hospital’s control, and the drawdown of funds for the post was dependant on providing the name of the successful candidate by that date.

On the facts as presented, the Complainant was facilitated with an extension to her interview date. She could not attend on the date proposed and requested a further extension. The Respondent did not accommodate the second request. In the view of the Court, the clear reason why the Respondent did not grant the further extension was set out in its letter of the 13 October above namely the HSE requirement to recruit the successful candidate by the 23 October 2017. The Complainant has not presented sufficient facts to infer that she was subject to adverse treatment because she had lodged a complaint to the WRC in 2016.

The status of the 2016 Panel

The Complainant contends that she was also subject to adverse treatment having made a complaint to the WRC in 2016 as she was already on a panel for the same post since 2016 so should have automatically been offered the Respiratory Candidate Advanced Nurse Practitionerpost. The Respondent rejects that assertion and submits that the 2016 panel had already expired, as the duration of panels is limited to a specified period, which normally is one year, as per Department of Health Circular No.10/71.

The Complainant asserts that she was informed that the 2016 panel would be extended, however, no evidence was proffered by her to support that assertion. She also contends that she was never notified when the panel expired.

When she queried the status of the panel in late 2017, she was advised that the panel had already expired and that candidates are notified in circumstances where a panel ceases prior to the expiry date. She was also incorrectly advised that she had placed third on that panel.

Having reviewed the correspondence to the Complainant, the Court finds that she was notified in July 2016 that she had placed second on a panel for the post of Clinical Nurse Manager 2 which would expire on 3 April 2017. In that correspondence the Respondent stated that candidates would be notified if the panel ceased to operate or was extended. A subsequent email to the Complainant clarified the expiry date of the panel to be 3 July 2017.

On the facts as presented, the Court finds that the Complainant was notified that the expiry date for the 2016 panel was 3 July 2017. As thepanel had expired by the time of the October 2017 campaign, the Court does not uphold her complaint that she was subject to any adverse treatment when not automatically appointed to the 2017 post by virtue of her placing on the 2016 panel.

Having regard to all of the above, the Court does not find that sufficient facts were established by the Complainant to infer that she was subject to victimisation within the meaning of section 74 of the Act.

CNM1 Respiratory Post (December 2017) and CNS Respiratory Post (January 2018)

The Complainant asserts that she was subject to discrimination on the race ground when a white Irish national with less experience and qualifications was appointed to the CNM1 Respiratory post and/or the CNS Respiratory Post, after interviews for those roles were held in December 2017 and January 2018.She asserts that she was also subject to adverse treatment as she was not panelled for the post, despite her obvious experience and qualifications.

The Complainant asserts that the Respondent failed to implement an open and transparent selection process and that her qualifications and experience were not given due weight or consideration by the interview panel.

The Respondent rejects the assertion that the process was not open or transparent. Its position is that the interview scoring system is under constant review to ensure that it reflects and supports objective criteria, and that the Complainant was not the most suitable candidate for either post, as reflected in the lower scores she attained compared to the successful candidates.

CNM1 Respiratory Post – December 2017 

Composition of the Interview Board

Before the interview for the CNM1 Respiratory Post inDecember 2017, the Complainant requested that individuals who were the subject of her pending action against the hospital ought not to be involved in the decision-making process for the competition. She asserts that despite receiving assurances to that effect, a manager, Maura Rowlands, was appointed to the interview panel. She also objected to the inclusion of Aidan McGrath, the Head of Recruitment, on the panel. The Complainant submits that she could not reasonably be expected to be judged objectively and dispassionately by individuals against whom she had made serious allegations. 

The Respondent denies any procedural or substantive unfairness with the December 2017 campaign. It contends that it was necessary for Aidan McGrath to sit on the panel, as he was responsible for recruitment, and Maura Roland sat on the interview panel as she was not captured by the period encompassed by the December 2016 WRC complaint and was not the subject of any formal complaint by the Complainant. The Respondent further contends that there was one non-Irish member of the panel, and that the scoring process for competency-based interviews was reviewed to protect the process from subjectivity and bias.

Assessment of Experience and Qualifications

The Complainant submits that she was the better qualified and more experienced candidate for the post. She contends that the successful candidate had completed a post-graduate diploma, while the fact that she as undertaking a master’s degree at that time was not given sufficient weight. Furthermore, she asserts that the Respondent misleadingly referred to the successful candidate as a “senior staff nurse” although that candidate had less experience than she did, and her previous management experience in India was ignored.

The Respondent submits that it selected the best person for the job, as demonstrated by the interview notes and scores sheets. The successful candidate scored consistently higher than all the candidates with an overall total of eighty-eight points. The Complainant scored sixty-nine points at interview.

The Respondent submits that, unlike the successful candidate, the Complainant did not meet the relevant criteria to be designated a “senior staff nurse”, which is a separate designation. She met the criteria to be invited for interview in terms of her qualifications and experience as demonstrated on her Curriculum Vitae, and having met that criteria it was open to her to demonstrate her suitability for the role through that competency-based interview process. It asserts that she may not always have demonstrated her experience and ability at interviews and the points scored reflect her performance at December 2017 interview. It asserts that she was offered interview feedback and coaching on multiple occasions, all of which she declined.

Findings

Having regard to the oral and written submissions, the Complainant has not established facts which infer that the interview panel for the December 2017 competition was not constituted properly. In that regard, the Complainant provided no evidence or supporting documents to support her assertion that she had made a formal complaint or grievance against Maura Roland. The Complainant relied on an email dated 27 November 2017 to support her assertion that she made a complaint about Aidan McGrath, however, the Court could find no reference to Aidan McGrath in that email.

The Complainant further asserts that insufficient weight was given by the panel to her past experience and her qualifications at the interview. It is clear that the Complainant met the qualifying criteria in terms of experience and qualifications to be called for interview. The Court notes that once the candidate was called for interview, the selection process thereafter was through a competency-based interview process, in which it was up to each candidate to demonstrate their suitability for the post by giving relevant examples of each competency at the interview. No facts were presented by the Complainant to infer that the marks awarded under each of the competencies assessed by the interview panel, as between her and the successful candidate, were illogical or unfair. It is not the role of the Labour Court to substitute its views on the relative merits of candidates for those of the selection committee to determine the most appropriate candidate for a role, unless there is clear evidence of unfairness in the selection process, or the outcome is clearly illogical.

Based on the submissions made, the Complainant has not presented facts that infer that any member of the panel was unfair in their assessment of the Complainant, or that the interview process was carried out in an unprofessional manner.

Having regard to the oral and written submissions, the Court finds that the Complainant has failed to establish facts from which discrimination on the ground of race may be inferred and so has failed to establish a prima facie case of discrimination such that the burden of proof shifts to the Respondent.

Claim of Victimisation

The complainant submits that she was subject to adverse treatment as she was not placed on a panel for theCNM1 Respiratory Post, despite her obvious experience, qualifications and competencies, while the Respondent asserts that she was not panelled because she did not reach the necessary score to be placed on the panel.

The Court found that the Complainant did not establish that the marks awarded by the selection committee were illogical or unfair, or that the interview process was carried out in an unprofessional manner. Having regard to the above, the Court is satisfied that the Complainant’s failure to be panelled for the post was a result of the lower marks she secured at interview and so does not amount to victimisation within the meaning of section 74 of the Act for lodging a claim of discrimination the WRC in December 2016.  Accordingly, the Court does not find that the Complainant established sufficient facts to infer that she was subject to victimisation under the Act.

CNS Respiratory Post –January 2018 

External Interview Board

Before the interview for the CNS Respiratory Post inJanuary 2018, the Complainant’s trade union requested on her behalf that an independent external selection panel be used for the competition. The Respondent replied to say that there was no need for an external panel as the Complainant had no formal grievance against any member of the proposed interview panel. However, it agreed to include one external member on the panel. The Complainant objected to the external member that was appointed as she came from another hospital within the Respondent group and, therefore, in her view could not be independent. The Complainant once again objected to the presence of Mr McGrath on the panel.

Assessment of Experience and Qualifications

Like her complaint about the December 2017 competition, the Complainant asserts that the successful white and Irish candidate in the January 2018 competition had less experience that she did, and her previous management experience in India was ignored.

Again, the Respondent contends that Complainant met the criteria to be invited for interview in terms of her qualifications and experience, and that it was open to her to demonstrate her experience and ability at interview.

The successful candidate outscored the Complainant on each of the six competences examined by the interview panel. The successful candidate scored seventy-eight out of one hundred. The Complainant scored sixty out of one hundred and failed to meet the required competency standard in four areas.

The Court notes that the candidate placed second in the competition was of Indian origin and scored 72 out of 100. The successful candidate was promoted out of the post and the candidate of India origin who placed second obtained the role.

Findings

Having regard to the submissions made, the Complainant has not established to the satisfaction of the Court that the interview panel for the competition was not constituted properly. In the Court’s view, the appointment of an external member, albeit from another hospital within the Respondent group, was a reasonable approach in response to the request made by the Complainant’s union official. The Court found no reference or evidence to a complaint about Mr McGrath in the correspondence relied upon by the Complainant to support that assertion.

The Complainant further asserts that insufficient weight was given by the panel to her experience and her qualifications at the interview. As with the December 2017 competition, the Complainant met the qualifying criteria in terms of experience and qualifications to be called for interview for the January 2018 competitions. The selection process thereafter was through a competency-based interview process, in which it is up to each candidate to demonstrate their experience and ability through evidence of examples given at the interview.

Based on the oral and written submissions made, no facts were presented by the Complainant to infer that the marks awarded under each of the competencies assessed by the interview panel, as between her and the successful candidate, were illogical or unfair. Furthermore, the Complainant has not presented facts that infer that any member of the panel was unfair in their assessment of the Complainant, or that the interview process was carried out in an unprofessional manner.

Furthermore, the Court notes that when the successful white Irish candidate was subsequently promoted, the next candidate on the panel, who was of Indian origin, was appointed to the post.

Having regard to the submissions made, the Court finds that the Complainant has not establish facts from which discrimination on the ground of race may be inferred and so has failed to establish a prima facie case of discrimination such that the burden of proof shifts to the Respondent.

Claim of Victimisation

The complainant submits that she was subject to subject to adverse treatment as she was not placed on a panel for the CNS Respiratory Post, despite her obvious experience, qualifications and competencies. The Respondent says that she was not panelled because she did not reach the necessary score to be placed on the panel.

The Court has found that the Complainant did not establish facts to infer that the marks awarded by the interview panel were irrational or unfair, or that the interview process was carried out in an unprofessional manner. Having regard to the above, the Court is satisfied that the Complainant’s failure to be panelled for the post was because of the lower marks she secured at interview and so cannot amount to victimisation within the meaning of section 74 of the Act for lodging a claim of discrimination the WRC in December 2016.  Accordingly, the Court does not find that the Complainant established sufficient facts to infer that she was subject to victimisation under the Act.

Conclusions of the Court

The Court has carefully evaluated the oral and written submissions made at the hearing together the extensive documentation put in evidence. No witness testimony was proffered by either party. 

In any case of alleged discrimination, the Complainant must first prove the primary facts upon which she relies to advance a claim of discrimination. If the primary facts are proved, or are admitted, the Court must be satisfied that they are of sufficient significance to raise a presumption of unlawful discrimination.

For the reasons outlined, the Court does not in this case accept that sufficient facts have been established by the Complainant to infer discrimination or victimisation on the race ground. The Court concludes that the Complainant has failed to establish primary facts from which it could be inferred that she was discriminated against or victimised during the cognisable period for the within complaint.

As the Complainant has failed to establish a prima facie case of discrimination or victimisation within the cognisable period of the within complaint, the Court cannot address the contention that events occurring within that period were part of a continuum of discrimination. As a result, the Court does not have jurisdiction to consider the complaints made by the Complainant relating to events outside the period set out in the Acts for the making of a complaint of discrimination.

The Court therefore concludes that the Respondent did not discriminate against the Complainant on the race ground in contravention of the Act.

Determination

The Court determines that the Complainant was not discriminated or victimised against on the ground of race.

The Adjudication Officer’s Decision is upheld, and the appeal fails.

	Signed on behalf of the Labour Court
	Katie Connolly
ÁM	______________________
17 September 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Áine Maunsell, Court Secretary.