EMPLOYMENT EQUALITY ACT, 1977
EQUALITY OFFICER'S RECOMMENDATION NO. EE 18/1996
PARTIES
MID WESTERN HEALTH BOARD
{Represented by Local Government Staff Negotiations
Board}
and
MR. M. CLANCY
MR. M. LEAHY
{Represented by the Psychiatric Nurses Association}
1. DISPUTE
1.1 This dispute concerns allegations by Mr. Martin Clancy
and Mr. Michael Leahy that the Mid Western Health Board
discriminated against each of them contrary to the
provisions of the Employment Equality Act, 1977.
2. BACKGROUND
2.1 The claimants are employed as staff nurses in the Clare
Mental Health Service. In April, 1994 a competition
was held for the post of Acting Clinical Teacher at the
Regional Psychiatric Nurse Training School, Limerick.
The successful candidates would fill any temporary
vacancies at this level which might arise during the
following twelve months.
2.2 Four nurses including the claimants participated in the
competition. Two candidates, both female nurses, were
successful in being placed on the panel for appointment
File No. EE 31/95
to the position of Acting Clinical Teacher. The first
assignment of Acting Clinical Teacher was offered to
the nurse placed first on the panel. No further
assignment became available until January 1995 when a
replacement for maternity leave cover was required.
This assignment was again offered to the candidate
placed first on the panel but she was unable to accept
due to the fact that she was about to avail of
maternity leave herself. The assignment was then
offered to the candidate who had been placed second on
the panel. However she also declined to accept as in
the interim she had been promoted to Acting Nursing
Officer to a busy city day hospital. The Chief Nursing
Officer then selected a nurse for the assignment. The
nurse who was selected is female.
2.3 The claimants considered that in choosing to go outside
the immediate applicants for the posts the selection of
this nurse for the assignment constituted
discrimination against each of them on the basis of
their sex. On 27 July, 1995 the Psychiatric Nurses
Association referred a complaint to the Labour Court
that the Midwestern Health Board discriminated against
each of them in terms of Section 2(a) of the Employment
Equality Act, 1977. On 30 August, 1995 the Court
referred the matter to an Equality Officer for
1
investigation and recommendation. Submissions were
received from both parties. A joint hearing of the
dispute was held on 20 February, 1996, following which
further evidence was submitted.
3. SUMMARY OF THE CLAIMANTS' CASES
3.1 The Psychiatric Nurses Association alleges that the
Health Board discriminated against Mr. Clancy and Mr.
Leahy in terms of Section 2(a) of the 1977 Act.
Section 2(a) states that discrimination shall be taken
to occur where
"where by reason of his sex a person is treated
less favourably than a person of the other sex, "
3.2 The Association submits that in choosing to go outside
the immediate applicants for the post the Board
demonstrated a preference for a female to fill the
post. It alleges that during a meeting on 23 August,
1993 the Chief Nursing Officer's statement that "we now
have a male and a female teaching staff in the school"
is indicative of that preference.
3.3 The Association asserts that the male candidates
satisfied all of the requirements of the post. It
believes that the C.V's of the claimants should have
2
been sufficient to secure them one of the top two
places at the original interview. The decision of
management to ignore their applications, which were
supported by an excellent record of academic
achievement and nursing practice, is indicative of
discrimination on the part of management.
3.4 The Association further submits that Mr. Leahy had
more experience at a higher supervisory level, greater
qualifications and more relevant teaching experience
than the person appointed to the acting position in
January, 1995. He was the only candidate who had
actual experience as an Acting Clinical Teacher. Mr.
Clancy also had supervisory experience and had a number
of qualifications including the Diploma in Professional
Studies which the Health Board in its submission
considers relevant to this appointment. It alleges
that the Board's decision not to hold another interview
merely emphasises the discriminatory intent. It
submits that had an interview been held the males would
have had the greater chance of success having regard to
their experience, education and training.
3.5 In terms of a remedy, the Association seeks a finding
from the Equality Officer that the Board discriminated
against Mr. Clancy and Mr. Leahy on the basis of their
3
sex, that the Board compensate each of them
appropriately for the discrimination experienced and
that the Board be instructed to rotate the Acting
position between Mr. Clancy and Mr. Leahy and the
present incumbent and then re-interview when all have
gained the same/equal length of experience in the
particular post.
4 SUMMARY OF MIDWESTERN HEALTH BOARD CASE
4.1 The Health Board disputes the claimants' allegations
that they were discriminated against contrary to the
terms of the 1977 Act.
4.2 The Board submits that in the light of the
unavailability of the nurses on the panel to undertake
this particular assignment the Chief Nursing Officer
selected a nurse for assignment as it is not normal
practice to hold a competition within the lifetime of a
panel. The nurse selected for the "acting" assignment
was selected as she was particularly suitable to
undertake this task. The criteria governing her
selection were as follows:-
(i) She had been acting in the position of nursing
officer in a busy city hospital for a continuous
period of more than four years immediately prior
4
to the selection for this "acting" assignment.
The duties of this post included supervision of
staff and student nurses, liaising with other
health professionals and nurse tutors and
co-ordinating the delivery of mental health
services for a particular geographical area of the
Board and the management of the assigned resources
to do so.
(ii) She had just completed a special assignment i.e.
teaching on a lifting techniques - a very
demanding and high level course.
(iii)She had previously been placed on a panel for
Clinical Instructors following a competition.
(iv) She had a Diploma in Professional Studies which
was regarded as very relevant to this position
because the student nurses in the training
programme were pursuing the first ever university
linked training programme in the country.
4.3 While the Board acknowledges that both of the claimants
had supervisory experience and one of the claimants
possessed the Diploma in Professional Studies, it
contends that neither had the same quantity of relevant
supervisory experience as the appointee. It further
maintains that while the claimants had originally
applied for the temporary acting position, they were
5
not placed on the panel thus the fact of their
application for the post could not be a determinant in
the making of this appointment. It would not be normal
practice to consider someone for assignment who had
been so recently unsuccessful in their application. In
relation to the Association's allegation that the Chief
Nursing Officer's comment at a meeting in August 1995
is indicative of a preference to discriminate this is
strongly refuted by the Health Board. The Chief
Nursing Officer at the joint hearing on 20 February
1996 stated that he was merely outlining the fact that
there was male and female staff in the school and the
Association is now attempting to put a different
connotation on this statement.
4.4 In summary, the Health Board strongly contends that the
selection of the "appointee" to the position of Acting
Clinical Instructor was not related to her gender. She
was selected on the basis of her particular supervisory
experience, teaching experience, previously having been
placed on a panel for the post of Clinical Instructor
and possession of relevant qualifications. It asserts
that the non-selection of the two claimants was totally
unrelated to their gender and therefore did not
constitute a breach of either Section 2(a) or Section
3(i) of the Employment Equality Act, 1977.
6
5 CONCLUSIONS OF EQUALITY OFFICER
5.1 In making my recommendation, I have taken into account
all the submissions, both written and oral, made to me
by the parties.
5.4 The claim before me is that, in January 1995 when the
appointees to a panel for an acting post were
unavailable, the Health Board, in selecting a female
nurse for the acting position who had not applied for
it, discriminated against the two claimants on grounds
of their sex. The Association has argued that but for
the two claimants being male either of them would have
been appointed to the acting position or alternatively
the Board would have held a further interview.
5.5 I asked both parties what was the normal practice when
panels such as this are "exhausted". Neither could
cite a precident. Both sides accepted that it is
normal practice to have a panel run for 12 months. In
this case the Health Board stated that in January 1995
the panel had been operating for less than twelve
months and it was not considered to be exhausted as the
people on it were only temporarily unavailable. The
Chief Nursing Officer was obliged to make an
appointment. The appointee was the person who
immediately came to mind as she had
7
- supervisory experience - she had been acting in
the position of Nursing Officer for a
continuous period of more than four years in
the same job.
- additional teaching experience - she had taught
on a lifting techniques course.
- been previously placed on a panel for Clinical
Teachers
- the Diploma in Professional Studies.
The Health Board argued that the claimants were not
considered as they had been unsuccessful at the earlier
interviews.
5.5 I consider that it is reasonable to assume that if the
results of the interview had been disregarded and the
cliamants considered, the most experienced and
qualified person would have been appointed. On that
basis I compared the claimants' qualifications and
experience with the appointee's. I note that Mr. Leahy
- had less supervisory experience
- had 1 years experience as a Clinical Teacher
- did not hold the Diploma in Professional
Studies, he had completed the first year of the
course at the time of the original interview.
In relation to Mr. Clancy I note that he
8
- had less supervisory experience
- had no teaching experience
- held the Diploma in Professional Studies.
In view of the foregoing I consider that the appointee
in terms of experience and qualifications would have
been placed higher than either of the two claimants. I
consider that there is no evidence to suggest that
either of the claimants was treated less favourably
because of his sex.
While no claim of discrimination was referred in
relation to the original interviews at which the
claimants were unsuccessful I consider that it may be
useful for me to refer to these. I note that from
evidence submitted to me during this investigation both
the successful candidates at these interviews had
supervisory experience and were studying for the
Diploma in Professional Studies at the time of the
interviews and successfully completed it very shortly
after. The evidence available to me does not support
the contention that either of the claimants was treated
less favourably than a female in similar circumstances.
6 RECOMMENDATION:
9
6.1. I find that the Mid Western Health Board did not
discriminate against either of the claimants in terms
of Section 2(a) of the Act and contrary to Section 3 of
the Act.
______________________
Deirdre Sweeney,
Equality Officer.
7th August, 1996.
10