DEC-E2004-010 Full Case Report

A Complainant(Represented by IMPACT) AND A Health Board(Represented by the Health Service Employers' Agency)

1. DISPUTE

1.1 This dispute concerns a claim by a complainant that he was discriminated against by a health board on the ground of race, contrary to the provisions of section 8 of the Employment Equality Act, 1998, when he was unsuccessful at an interview for a permanent Team Leader post. He also claimed that he had been harassed on the race ground, contrary to section 32 of the Act, and that he was victimised by the respondent, contrary to section 74. As some matters of a sensitive nature arose in the course of this investigation, this decision does not contain any details which would identify the parties.

1.2 The complainant referred a claim to the Director of Equality Investigations on 8 February 2002 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case on 30 May 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 25 April 2003. Subsequent correspondence with the parties concluded on 20 June 2003.

2. SUMMARY OF THE COMPLAINANT'S CASE

2.1 The complainant, who is British, holds a Master's Degree in Social Work and has four years' post-qualification experience in social work. In January 2000 he obtained a temporary position as a child protection social worker with the respondent Health Board. He claimed that he was subjected to inappropriate remarks from a Senior Social Worker and his Team Leader about his background, that his nationality was a factor in his failure to be appointed to a permanent Team Leader post, that his contract was prematurely terminated in August 2000 because of bias against him and that he was victimised by unsubstantiated allegations of professional misconduct made against him to frustrate an internal investigation of his claims of discrimination.

2.2 The complainant said that in February 2000 he approached the Senior Social Worker regarding concerns he had with a client assigned to him. The client required supervision of his visits with his children, and his extradition was being sought by UK police in connection with offences against children. The complainant had been warned that he was a predatory paedophile and dangerous, and he was concerned when he discovered the client had moved to the small town in which the complainant and his family lived. The complainant asked that another colleague supervise the access, and he claimed the Senior Social Worker responded along the lines that "In Ireland we have to live and work in dangerous conditions and [the complainant] would have to get used to that."

2.3 The complainant said that he had subsequent exchanges with the Team Leader in which concerns were expressed about the complainant's ability to integrate and the Team Leader said "differences in culture between Ireland and England would inhibit easy integration." Unhappy with these comments, the complainant approached the Senior Social Worker, who arranged a meeting to discuss the surrounding issues. Contrary to the complainant's expectations, the meeting evolved into a speech from the Senior Social Worker describing different ways of doing things in Ireland as opposed to England and telling the complainant he would have to learn to fit in.

2.4 On 12 May 2000, the complainant was interviewed for the position of permanent Team Leader by an Interview Board which included the Senior Social Worker. The Record of Interview included a comment added by the Senior Social Worker that "The candidate needs to orientate himself to the legislative and cultural framework in which he is working." The Senior Social Worker was also a member of an Interview Board attended by the complainant on 8 June 2000, this time for the position of acting Team Leader. On this occasion, a comment was added to the Record of Interview that said "[The complainant] needs more experience in Irish statutory childcare services."

2.5 On 3 August, the complainant was told by the Senior Social Worker that his temporary post was being filled from the permanent panel established following the 12 May interviews and that his contract was being terminated with effect from 18 August. When the complainant asked if he could be provided with a reference, the Senior Social Worker said that he could not recommend him for another position in the Irish statutory childcare setting. He suggested the complainant seek a position in voluntary childcare, or alternatively a statutory position outside childcare. The complainant enquired about possible vacancies in another community care area within the health board, and the Senior Social Worker said he envisaged some arising and suggested the complainant contact the relevant Senior Social Worker in that location. He said that, if asked, he would tell her that the complainant might be in a position to fill such a vacancy if given a very small highly supervised caseload in an environment where he would have a number of colleagues providing him with a support system. The complainant said that the community care area referred to had an extremely heavy workload. If he had to be given a very small and highly supervised caseload, he could not be employed there.

2.6 Shortly after this conversation the complainant wrote to the respondent's Personnel Manager expressing his concerns about his termination of employment and the comments made to him by the Team Leader and the Senior Social Worker during his employment. He received a letter in response which stated that both men strongly denied his allegations. Following the complainant's receipt of advice from the Equality Authority, agreement was eventually reached with the respondent to investigate his claims. The matters to be investigated were: the Senior Social Worker's "inappropriate and illegal" remarks about the complainant's background; the complainant's summary dismissal which he claimed was due to discrimination; and the complainant's nationality as a factor in his non-selection for the Team Leader position.

2.7 The Investigation Team reported in September 2001 that it had not upheld the complainant's claims. The complainant said that the investigation was flawed in process and outcome. He said that, apart from one initial interview with himself, it consisted solely of the Senior Social Worker being afforded an opportunity to justify the harassment and dismissal of the complainant and to make fanciful interpretations of some of his recorded discriminatory remarks. Furthermore, the complainant said the Senior Social Worker invented new reasons for his dismissal which amounted to allegations of professional misconduct and a potential failure to protect children in his care. These allegations were accepted as fact by the Investigation Team and provided in its report to Personnel without the complainant being given an opportunity to see or reply to them. The report was now included in his personnel file and could jeopardise his employment prospects, which he claimed was victimisation.

2.8 The complainant said that, due to the enormous shortage of child protection social workers, it was essential for the health boards to recruit from overseas. However, he said the respondent needed to show that having recruited highly trained and motivated people such as himself, it was willing to protect them against bullying, harassment and dismissal by those individuals less willing to accept and value diversity.

3. SUMMARY OF THE RESPONDENT'S CASE

3.1 The respondent argued that the claim was referred out of time. It pointed out that the incidents complained of allegedly occurred during the period the complainant was employed in a temporary capacity between 4 January 2000 and 18 August 2000. His claim was referred to the Director of Equality Investigations on 6 February 2002, and was therefore outside the time limit of six months specified in section 77 (5) of the Act. It was also outside the twelve month time limit permitted by section 77 (6) where exceptional circumstances prevented the referral.

3.2 Without prejudice to this argument, the respondent denied the allegation of discrimination on the race ground. It said that the "inappropriate and illegal" remarks were not made in relation to an attribute of the complainant's nationality, but were rather made in an attempt to explain that there could be difference in working environment, structures and procedures between this jurisdiction and the jurisdiction in which he had previously worked. It said the comments were job-related and could not be construed as racist or derogatory.

3.3 Repeating its assertion that the claim was out of time, the respondent said that the complainant's dismissal was not as a result of his race, but because of performance issues. It further pointed out that a claim of discriminatory dismissal was not appropriate to the Director of Equality Investigations, as section 77 (2) of the Act stipulates that such a claim "may be brought to the Labour Court and shall not be brought to the Director".

3.4 The respondent said that the interviews for the two competitions, having been held in May and June 2000, were clearly out of time. However, it contended that the Interview Board comment in the May interview "Candidate needs to orientate himself to the legislative and cultural framework in which he is working" was not a racist comment, but was a constructive comment identifying where the Interview Board felt the complainant had a knowledge deficit which he would require to make up in order to qualify for the post in question. The respondent said that the June observation that the complainant "needs more experience in statutory Irish childcare services" was misinterpreted by the complainant as a reference to his nationality. The respondent said that it was a reasonable comment made in the context of relevant work experience necessary to the post.

3.5 The respondent also denied the complainant's assertion that he was victimised by the respondent. It contended that it gave detailed consideration to his allegations and ensured that an independent investigation was carried out. The Investigation Team concluded that the complaints were groundless. The respondent said that the findings of the Investigation Team could not be construed as victimisation within the meaning of the 1998 Act. The respondent also pointed out that the complainant secured a further temporary position in another region of the respondent health board on 21 August 2000, and was given a permanent contract on 15 January 2001. It said this was clear evidence that the complainant had not been victimised by the respondent.

4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.


Time limit

4.2 The respondent argued that the claim was out of time because it related to a period of employment which concluded on 18 August 2000 and was not referred until 8 February 2002, contrary to the provisions of the Act. However, the claim included an allegation of victimisation related to the investigation of the complainant's assertions of discrimination. The Investigation Team reported on 19 September 2001, and the report was forwarded to the complainant on 12 October 2001. Section 77 (6) states that "...a claim for redress in respect of discrimination or victimisation may not be referred...after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence...". As the claim was referred less than six months after the report of the Investigation Team, I find that it was within time. The investigation was the most recent occurrence of a sequence of discrimination and victimisation being claimed in the referral, so I am satisfied that most of the complainant's allegations form part of my investigation.

4.3 The only matter excluded is the complainant's assertion that his dismissal was discriminatory on the ground of race. Section 77 (2) of the Act quite specifically provides that such claims may be brought to the Labour Court and shall not be brought to the Director. This matter is therefore outside my jurisdiction.


Burden of proof

4.4 In a recent claim of discrimination on the disability ground taken under the 1998 Act, the Labour Court said "It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (SI NO 337 of 2000). Hence, where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities." (Customer Perception Ltd and Leydon [EED0317]). I am satisfied that the same procedural rule should be applied in this claim.

4.5 It is unacceptable that the respondent was not represented at the hearing by any individual involved in any of the matters complained of. Under the provisions of section 95 of the 1998 Act, the Director, and an Equality Officer by delegation, has the power to require any person who appears to have relevant information to attend before him or her for the purpose of furnishing that information. I did not exercise that power in this instance, as it appears to me that it is a matter for a respondent to provide any witnesses it considers relevant to its case. The situation would have been different of course if I felt the complainant's claim was compromised by the absence of these witnesses.

4.6 I did have access to several documents, including the Team Leader's note of a conversation he had with the complainant on 17 April 2000, the Senior Social Worker's written record of his conversation with the complainant on 3 August 2000, when the complainant was informed his contract was being terminated, the Records of Interview for both the May and June 2000 interviews, the report of the Investigation Team and the respondent's grievance procedure.

4.7 From the written communications of both the Team Leader and the Senior Social Worker, it is clear that issues of assimilation, integration and cultural differences were raised by both men as problems for the complainant to address. Contrary to the respondent's assertions, the comments do not appear to be solely jobrelated. If the complainant had been advised that he required more experience, this would have been understandable. The constant references to differences in culture, however, appear designed to mark out the complainant as "different". I can find no other reason for the ongoing comments made by the two supervisors than discrimination on the ground of race.

4.8 The Senior Social Worker's note of 8 August 2000 stated "[The complainant] enquired if I would give him a reference for Social Work and I informed him that I would not be in a position to give him a reference for statutory Social Work in Child Protection in the Irish setting...I further advised [him] that he might seek employment within the Child Care field in a voluntary body or alternatively in Social Work outside of child care." This was a clearly illogical statement. If the complainant was unsuitable for statutory child protection work, he would also be unsuitable for such work in the voluntary sector. The absence of any contrary evidence means I must consider this comment as further evidence of discrimination. I am also satisfied that the refusal of the Senior Social Worker to provide the complainant with a reference constituted unfavourable treatment.

4.9 The interviews in May and June 2000 were both marked in the same way, by way of a maximum of twenty marks awarded under six selection criteria to which different weightings were given depending on the importance of the criterion. In May 2000 interview the complainant was marked as follows:

The remark of the Interview Board said "Candidate needs to orientate himself to the legislative and cultural framework in which he is working". The job specification for the Team Leader post provided that knowledge of relevant childcare legislation and regulations was an essential requirement under the heading of Professional Knowledge. It will be noted that the heading was given a weighting of 1, indicating that it was one of the least important elements. Nothing in the specification gave any assistance in determining what may be intended by "cultural framework".

4.10 In the June interview, the complainant was marked as follows:

The Interview Board remark on this occasion was "[The complainant] needs more experience in statutory Irish child care services". However, it will be noted that the complainant received the maximum marks available under the criterion Experience, and also that he received more than twice the marks he had received less than a month before in the same category.

4.11 As the complainant obtained another temporary post as a child protection social worker almost immediately after his dismissal, was made permanent in January 2001 and was subsequently promoted to the position of Team Leader, it is clear that his competence cannot be disputed. The tenor of both comments, in the absence of any other evidence to the contrary, again suggests that the complainant was seen as an outsider in some way. It is noteworthy that the Senior Social Worker, who had previously stressed the complainant's different cultural background, was a member of both Interview Boards.

4.12 In investigating the complainant's allegations, the Investigation Team interviewed the complainant, and forwarded its record of his comments to the Senior Social Worker and the Team Leader. Both men were then interviewed together about the allegations. The complainant was critical of the fact that he was given no opportunity to see their responses before the Investigation Team reported, and his representative union argued that this breached the respondent's grievance procedures.

4.13 While I have no jurisdiction to investigate the complainant's dismissal, I note from the investigation report that the Senior Social Worker said that he terminated the complainant's employment because he failed to share work practices, he refused to carry out tasks, he believed he was always right, he failed to follow through on agreed procedures and he was reluctant to share information at a case conference. The Senior Social Worker's note of 8 August 2000, however, said that he was terminating the contract because the post was to be filled from the permanent panel set up following the interview. It is true that the note included references to certain practice issues which had arisen, as did the Team leader's note of the 17 April conversation, but all of these references revolved around the assimilation and integration problems already referred to. The reasons for termination given to the Investigation Team constituted new and potentially serious allegations regarding the complainant's professionalism, which he was never given an opportunity to address. I am satisfied that the fact that these allegations were accepted as fact constituted victimisation of the complainant.

4.14 I cannot find that the Investigation Team's methods breached the respondent's grievance procedure, because I was unable to find any reference to such investigations in the grievance procedure. The document dated from 1994, and contains no reference to the Employment Equality Act, 1998. Reference is made to complaints of sexual harassment, citing the provisions of the Employment Equality Act, 1977, which was repealed by the 1998 Act. The respondent, therefore, has no provisions for dealing with complaints of discrimination on any of the seven new protected grounds introduced by the 1998 Act, nor does it have procedures for complaints of harassment or victimisation on these grounds.

4.15 The complainant said at the hearing that he was merely seeking recognition of his mistreatment. He would accept a letter from the respondent's Chief Executive Officer acknowledging this fact, and the removal of the Investigation Team Report from his personnel file. He made it clear that he was not seeking other redress. It was obvious at the hearing that the situation had caused him considerable distress and professional concern, and I consider that some financial compensation for this would be appropriate in this case. However, since the complainant's attitude was unambiguous, I must respect his wishes in this regard.

5. DECISION

5.1 Based on the foregoing, I find that the respondent discriminated against the complainant on the ground of race, contrary to the provisions of the Employment Equality Act, 1998, in the way in which his two interviews were evaluated. I also find he was harassed by the nature of the comments addressed to him by the Team Leader and the Senior Social Worker, and that he was victimised by the procedures and conclusions of the Investigation team.

5.2 I hereby order that the respondent:

(i) provide the complainant with a letter formally acknowledging the discrimination against him;
(ii) remove the Investigation Team's report from the complainant's personnel file;
(iii) devise a new grievance procedure, in consultation with staff representatives, to deal with all issues arising from the introduction of the 1998 Act, circulate to all staff and ensure proper training in all its aspects.

_____________________
Anne-Marie Lynch
Equality Officer
20 February 2004