Azizeh (Represented by the Irish Nurses' Organisation) AND Northern Area Health Board (Represented by the Health Service Employers' Agency)
1. DISPUTE
1.1 This dispute concerns a claim by Mr Saed Azizeh that he was discriminated against by the Northern Area Health Board on the ground of race contrary to the provisions of the Employment Equality Acts 1998 - 2004 when he was prevented from accessing night duty roster and from specialling patients.
1.2 On behalf of the complainant, the Irish Nurses' Organisation (INO) referred a claim to the Director of Equality Investigations on 7 February 2003 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 13 January 2004 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 November 2004. Subsequent correspondence concluded on 1 December 2004.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant, who is a Jordanian national, is a qualified Registered General Nurse with some 14 years' experience in psychiatric nursing. He was recruited by the respondent in 2002, on a two year fixed-term contract, to work in the Acute Psychiatric Unit (Unit 9) of James Connolly Memorial Hospital (JCMH). This Unit comprised 22 beds and had a staff complement of 22 nurses. The complainant said that approximately 18 of the nurses were Registered Psychiatric Nurses (RGNs) and three or four were Registered General Nurses (RGNs). He said that a new dedicated acute psychiatric facility with 57 beds had been built, into which it was intended to transfer 25 beds from St Brendan's Psychiatric Hospital to merge with Unit 9 of JCMH.
2.2 The complainant said that, shortly after he started work, it became apparent to him that he did not have equal access to night duty shifts and was excluded from specialling patients. The latter is a practice where a patient requires one to one nursing care for a period of time due to an acute exacerbation of his or her psychiatric illness which may be life-threatening, and is normally done on overtime. The complainant said that in addition he had been told by work colleagues that he would not be transferring to the new facility. This greatly upset the complainant, who felt he had been recruited specifically to work in the psychiatric unit, and for which he had relocated his family to Ireland.
2.3 In January 2003, the complainant contacted the INO regarding his concerns, and the INO wrote to the respondent on his behalf, indicating that the complainant was claiming discriminatory treatment. By letter of 13 January 2003, the respondent advised that the pending transfer of the St Brendan's Hospital facility to JCMH and the planned new facility had raised management and union focus on the historical delivery of services in Unit 9 and on how they should be delivered in future. The respondent pointed out that the complainant did not have the psychiatric qualification required to work as a psychiatric nurse, but that he was being facilitated for the immediate future by being permitted to remain on day duty in Unit 9. To enable him to access night duty, the respondent said that such duty may be available in another unit of the hospital.
2.4 The complainant said that the practice of allocating RGNs to duty in Unit 9 had been in place for several years. These RGNs had always had equal access to night duty and specialling patients. He provided written confirmation of this from the Assistant Director of Nursing at JCMH, who also confirmed that she had recruited the complainant for assignment to Unit 9 on the basis of his clinical competence and his experience. The complainant pointed out that he had on occasion been requested to do night duty or to special patients when no other nurse was available.
2.5 The complainant said that the fact that he worked in the unit on day duty demonstrated that his competencies, experience and qualifications were satisfactory to hold a post of staff nurse within the work location. He said the restrictions of his access to night duty and specialling patients, as well as the fact that he was informed he would not be transferring to the new facility, were based on nothing other than subjectivity. He said it was a matter of fact that he was not offered the same treatment in relation to overtime, night duty or transfer as was offered to others.
2.6 The INO said that the ratio of non-Irish nurses to Irish nurses had changed considerably over recent years. It said that the inability of health sector employers to attract and retain Irish nurses resulted in vacant posts and frequent access to premia payments for shift work and overtime for all nurses. It asserted that this was a particular problem for the respondent in this claim, and said that the recruitment of non-Irish nurses had assisted the respondent in filling its vacancies. The INO suggested that the recruitment of the complainant reduced the amount of night duty and overtime available to existing nurses, and said it believed that this may be the basis of the initial discriminatory treatment of the complainant.
2.7 The complainant said that the fact that he did not have equal access to the duty roster was racial discrimination at its worst. He said the control imposed on him was a classic example of workplace segregation. He described the manner in which he was being treated as clandestine and intolerable. He said he had been effectively ostracised in his workplace by an implication that he was incompetent, unqualified and inexperienced to work in the field of psychiatric nursing. The complainant claimed that this was a direct breach of section 8 (6) of the 1998 Act, as he is on some occasions offered the same treatment as others but on most occasions he is not, and it was not possible that he was materially different on these occasions.
2.8 The INO referred to Labour Court Recommendation No LCR13459, which dealt with a claim under the Industrial Relation Acts 1946 to 1990 involving the Southern Health Board, the INO, the Services Industrial Professional Technical Union (SIPTU) and the Psychiatric Nurses' Association (PNA). The point at issue in that claim was that the night duty roster in an acute psychiatric unit had been entirely filled by RGNs (INO members), and the PNA argued that all nurses should have equal access to night duty. The INO said that at no point in the claim did SIPTU or the PNA (representing RPNs) put forward an argument that night duty was the single privilege of RPNs.
2.9 The INO said that it was seeking redress for the inequities outlined on behalf of the complainant, which it said exposed the failure of the respondent to ensure him fairness, equity and acceptance of diversity within the workplace. It said he had suffered both personal and professional stress because of the treatment he had received. As a remedy, the INO sought a declaration that the complainant had been discriminated against and compensation for the stress and anxiety caused to him.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent said it was committed to equal opportunities and denied that it had discriminated against the complainant contrary to the provisions of the 1998 Act. It contended that the reason the complainant was not permitted to access night duty or to special patients was without regard to his race. It said that nurses in Ireland who work in acute psychiatry were required to hold a psychiatric nursing qualification and be registered with An Bord Altranais as an RPN. However, as JCMH was a general hospital, traditionally some three or four RGNs were assigned to Unit 9.
3.2 The respondent said that the complainant and three other non-Irish nurses were recruited by the Assistant Director of Nursing responsible for Unit 9 as a result of an overseas recruitment drive. None of these nurses held a psychiatric nursing qualification nor were they registered as RPNs. Difficulty with their assignment to Unit 9 arose in the context of the establishment of the new acute facility to be created by the transfer of beds from St Brendan's Psychiatric Hospital and the merger with Unit 9.
3.3 The INO had representation rights for the nurses in JCMH. The PNA and SIPTU represented nurses in St Brendan's. Around the time of the complainant's appointment, negotiations were ongoing between the respondent, the PNA and SIPTU regarding the redeployment of staff from St Brendan's to JCMH. The respondent said that when the PNA and SIPTU became aware that nurses without the psychiatric nursing qualification were assigned to Unit 9, they threatened to pull out of talks. The respondent said it discussed the situation with the four nurses concerned and three of them agreed to re-locate to other areas of the hospital. The complainant refused to do so. Following lengthy discussions with the PNA and SIPTU, it was agreed to facilitate the complainant remaining in Unit 9 provided he work days only. The respondent said the rationale behind the agreement was that there was sufficient staff on day duty to support the complainant's decision making.
3.4 The respondent said that it then made an agreement with the two unions that no nurse without the psychiatric nursing qualification would be assigned to Unit 9 in future without agreement. It also made a commitment that only RPNs would work in the new acute facility, unless otherwise agreed. The respondent said that, in recognition of the fact that the complainant would suffer some financial loss as a result of these arrangements, it had offered him night duty in other areas of the hospital but he had refused this.
3.5 The respondent said that, of the 20 nurses employed in Unit 9, six were not Irish nationals. Eight nurses were RPNs and 11 were dual qualified as both RPN and RGN. The complainant was the only member of staff with just the RGN qualification, and was the only member of staff who was not on the night duty roster and was precluded from specialling patients. The respondent acknowledged that the complainant had occasionally carried out these duties, but said this had only happened where there were no RPNs available to carry out the work and the service imperative was such that the hospital had no other choice.
3.6 The respondent said that management at JCMH had assisted the complainant in his attempt to gain registration with An Bord Altranais as an RPN. It said An Bord Altranais determined whether a person can be registered in one or more of the divisions of nursing on a competency basis, that is it established whether the candidate had the clinical competence and theoretical understanding to be registered with the appropriate division. An Bord Altranais had concluded that the complainant should not be registered as an RPN. The respondent suggested that the complainant's career choices in psychiatric nursing were extremely limited unless he obtained registration as an RPN.
3.7 The respondent concluded that the reason the complainant did not participate in night duty or specialling patients in Unit 9 of JCMH was because he did not hold the requisite qualification to work in an acute psychiatric setting. This decision had been taken without regard to his race, and an Irish employee would have been treated in exactly the same manner in similar circumstances.
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.
4.2 The complainant alleged that the respondent discriminated against him on the ground of race contrary to the provisions of the Employment Equality Acts 1998 - 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including race.
Section 8 provides that
(1)In relation to-
(b) conditions of employment...
an employer shall not discriminate against an employee or prospective employee...
(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one-
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
4.3 In a recent claim of discrimination on the race ground (Citibank v Massinde Ntoko [Determination No EED045]), the Labour Court referred to its earlier decision in Flexo Computer Stationery Ltd and Kevin Coulter [EED0313] and said "Flexo...is but one of a line of decisions of this Court which held that where a complainant establishes facts from which discrimination may be inferred it is for the respondent to prove there has been no infringement of the principle of equal treatment. The Court normally requires the complainant to establish the primary facts upon which the assertion of discrimination is grounded." I am satisfied that the same procedural rule applies in this case, and it is for the complainant to establish the relevant facts.
4.4 There is little conflict between the parties as to the sequence of events in this matter. RGNs have traditionally been employed in Unit 9 of JCMH and given equal access to the duty roster. Although he did not have a psychiatric nursing qualification, the complainant had 14 years' experience in the speciality. He was recruited on this basis and was assigned to Unit 9, along with three non-Irish colleagues. Following the insistence of the PNA and SIPTU that only RPNs should be assigned to Unit 9 and to the new acute facility, the three nurses employed at the same time as the complainant agreed to re-locate. The complainant refused to do so, and has remained in Unit 9 without full access to the duty roster.
4.5 It is the complainant's contention that the treatment he received was discriminatory on the race ground, in that he was the only staff member so treated. However, I note that he was not the only non-Irish staff member in Unit 9. There were five others, each of whom had the psychiatric nursing qualification and each of whom had full access to the duty roster. The significant difference between the complainant and his colleagues is the fact that he is an RGN and they are all either RPNs or dual qualified.
4.6 It is clear that the complainant has found himself in a most unfortunate situation, through no fault of his own. He has extensive experience in psychiatric nursing, and was employed by the respondent for assignment to its acute psychiatric unit. As he continues to be assigned there, and is occasionally asked to do overtime when no RPN is available, it is clear that there is no question regarding his competence. However, he has not to date obtained registration as an RPN with An Bord Altranais. This is a matter outside the respondent's control. Its agreement with the PNA and SIPTU has brought about the result that no other nurses with just the RGN registration, Irish or non-Irish, are assigned to Unit 9.
4.7 Of course, industrial peace does not in itself justify unlawful discrimination. If it were the case that the PNA and SIPTU had insisted that only Irish nurses were assigned to Unit 9, I would have no hesitation in finding this to be discriminatory on the race ground. What they sought, however, was that only nurses with the psychiatric qualification be assigned to the unit. As five of the complainant's colleagues are non-Irish nationals who hold this qualification, there is no evidence that the stipulation operates to the disadvantage of non-Irish nationals vis-á-vis Irish nationals.
5. DECISION
5.1 Based on the foregoing, I find that the Northern Area Health Board did not discriminate against Mr Saed Azizeh contrary to the provisions of the Employment Equality Acts 1998 - 2004.
_____________________
Anne-Marie Lynch
Equality Officer
8 September 2005