Mr. Enda Connolly (Represented by SIPTU) vs Bons Secour Hospital (Represented by IBEC)
1. DISPUTE
1.1 The dispute concerns a claim by SIPTU, on behalf of Mr. Connolly, against the Bons Secour Hospital, Galway that he has been discriminated against on the grounds of marital and family status within the meaning of Sections 6(1) 6(2)(b) and 6(2)(c) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when he was not appointed to the position of Security/Porter (Night Shift).
2. BACKGROUND
2.1 The complainant was employed as a part-time porter in the respondent organisation for 8½ years. Two full-time positions for Night Porter were being created and the complainant was one of three part-time porters to apply. He was unsuccessful in his application and alleges that, during a feedback discussion with the Head Porter, he was told that the reason he was unsuccessful was because he is married with children. The respondent denies this and says that the reason he was unsuccessful related to his work performance and attendance.
2.2 Consequently the complainant referred his complaint of discriminatory treatment to the Director of Equality Investigations on 2nd December, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 25th June, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 17th June, 2005. Additional information was received from the parties and the final information was received on 29th August, 2005.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant is employed in a part-time capacity with the respondent organisation as a Porter. Two full-time porter positions on the night shift were advertised and the complainant applied. He was one of three persons to apply. The complainant was unsuccessful in his application and he alleges that, at a meeting with the Head Porter following the competition, he was told that the reason he did not get the night porter position was because he is married with children and it was considered that a night porter position would not suit him.
3.2 Following his application for the position the complainant sought a copy of the job description but was told that it was not yet available as it was not yet completed. According to the complainant he again requested the job description from the Chief Executive Officer's (CEO) Secretary but was again told it was unavailable. He says that the following day he discovered that a colleague, who had also applied for the position, was given a copy of the job description. The complainant notes that he did not receive the job description until the following day i.e. the day of the interviews.
3.3 The complainant states that the interviews were conducted by the Head Porter and the Hospital Engineer. It is the complainant's submission that the interviews were originally to take place in the Conference Room but in fact took place in the Hospital Engineer's office which was quite small and one of the interviewers had no seat. According to the complainant he was asked why he should be given the position and following his response to that question the Hospital Engineer referred to his reliability and referred to a day the complainant had indicated he would be available to work but on the day before had said that he could not work. The Hospital Engineer noted the problems this had caused for him. The complainant was one of three internal candidates who had applied for the position. According to the complainant he had worked with the respondent organisation for 8½ years whereas the other candidates were employed by the respondent organisation on a part-time basis for 2½ years in relation to one of the candidates and 3 months in relation to the other.
3.4 The complainant states that in May, 2003 a colleague was rostered to work in the X-Ray Department. He was absent on sick leave and the complainant was asked to work in his absence for two days. He agreed to work and worked the first day but was unable to work the second day for family reasons. The complainant says that on the first day he informed the Hospital Engineer that he was unable to work the following day, the Hospital Engineer was annoyed and did not ask why he could not work. The complainant notes that he was only rostered to work for 5 days in June and was not rostered to work for any days in July, 2003. It is the complainant's submission that during race week in Galway he was rostered to work in Stores and it subsequently transpired that another staff member was also rostered to work in Stores. When the complainant sought to clarify the position he was informed that he was not assigned to Stores and he was allocated other shifts. The complainant states that double booking has occurred many times during his employment in the respondent organisation.
3.5 When the complainant failed to be offered the position of Night Porter he expressed his disappointment to the Head Porter and the Hospital Engineer. It is the complainant's submission that he was told that he was unreliable. He says that he was also told that the Theatre Sister was also of this view. The complainant does not accept this and says that after the birth of his second child and despite his lack of sleep, he had provided cover in Stores and in the Theatre. According to the complainant he spoke with the Theatre Sister and she denied that she had any problem with the complainant. The complainant says that he also spoke with the Senior Radiographer who also stated that he was reliable and that she always requested him when she needed a porter.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 According to the respondent the Bon Secours Hospital Galway is a 65 bed private hospital providing services to insured patients in the Western Region and also to public patients under the National Treatment Purchase Fund initiative. The respondent says that it employs 250 people (170 whole-time equivalents) comprising nursing, hotel services, administration, paramedical and portering staff in the provision of these services. The respondent organisation was established in 1954 and was ultimately acquired by Bon Secours Health System Limited in 1999. By the nature of the hospital service some Departments are rostered on a seven day week with nursing staff particularly working on a 24 hour cycle.
4.2 The respondent states that it employs a Hospital Engineer who, alongside responsibilities for certain services functions, has responsibility for the portering function along with a Head Porter. Historically porters were employed on a full-time contracted basis with a number of individuals on a variable hour basis to support the permanent staff in terms of leave taking and other requirements. The respondent says that the Portering Department carries out a range of duties including general maintenance and painting work, assisting in the bringing of patients between various Departments within the hospital and other general duties. In mid 2003 it was decided to introduce a Night Porter service as previously portering services finished at 10.00p.m. and the respondent was left without a portering presence until 7.30a.m. which was a cause of concern from a security point of view. Consequently positions for Night Porters were advertised.
4.3 The respondent states that three candidates applied for the position. It does not deny that the manner in which the interview was carried out was less than perfect, but it was the same for all candidates. According to the respondent the outcome of the process was that the other two candidates were selected for the vacant positions and the complainant was unsuccessful. The respondent notes that the complainant took significant exception to this decision and particularly noted and contrasted his period of service as a temporary employee with the company compared to the other two candidates. It is the respondent's submission that management's experience and knowledge of the other two candidates show that they were solid, reliable and positive, albeit they had shorter service than the complainant. The respondent says that it was management's experience that when their availability was sought and confirmed, they delivered. By comparison their experience of the complainant was not the same.
4.4 The respondent denies that the complainant was discriminated against on the basis of his marital and family status. According to the respondent the complainant was unsuccessful on the basis of his record of inconsistent availability for attendance for work in the role of a temporary Porter, his avoidance of evening and late night duties and the general below average performance of his duties. The respondent says that there were a number of instances in the period immediately prior to the interviews where the complainant made himself unavailable at short notice and this caused a significant amount of difficulty in terms of staffing. For example on 12th May, 2003 the Head Porter informed the Hospital Engineer that the complainant had telephoned him the previous evening to say that he would not be available on that date, despite having given assurances that he would be available all week. The respondent notes that no apparent reason was given for the change of mind and this happened during a period when the respondent organisation was short staffed in that particular Department. Then on 16th May, 2003 the Hospital Engineer rang the complainant to confirm his availability for work from 19th May to 23 May, 2003 inclusive. The respondent says that the complainant did confirm his availability but then on 21st May, 2003 the complainant informed the Hospital Engineer that he was unavailable to work the following two days saying "I am not available tomorrow or Friday, I am in a rush, I have to go". The Hospital Engineer told the complainant that his behaviour was unacceptable and could not continue. The respondent says that, before the interview, when the Hospital Engineer rang the complainant at his landline address he would invariably get an answering machine. In the majority of instances the Hospital Manager did not leave a message on the answering machine and moved on to a more contactable and responsive employee. The respondent notes that if the complainant had a mobile phone he has not given the number to the respondent organisation. According to the respondent there were a number of instances when the complainant departed early from duty and when challenged on this by the Head Porter he denied same.
4.5 The respondent says that the complainant was the least favoured Porter in the Operating Theatres because he was viewed by staff there as not pulling his fair share of the workload. As regard work on the floor there were some occasions when there were certain routine duties that he would have to do which would not have been carried out by him and this would lead to friction with other staff. The respondent states that, during the complainant's time at the Hospital, he has been spoken to on a number of occasions, both individually and collectively in a group by both Hospital Management and in particular by the Hospital Engineer and the Head Porter. It is the respondent's contention that these factors mitigated against the complainant's chances in selection for the full-time Night Porter duties and the other two candidates, despite significantly shorter service, had shown themselves to be reliable and committed. The respondent argues that the selection decision has been justified on the basis of satisfactory performance and attendance records by both of the people who were selected for the position. According to the respondent an assessment of the availability and punctuality record of the candidates was an important factor here, as it would be very difficult to find alternative staffing in the event of someone being selected for the position and being unavailable for work for whatever reason.
4.6 In relation to the conversation which the complainant had with the Head Porter following the outcome of the interview process the respondent states that the Head Porter does acknowledge that there was some discussion in relation to the fact that the complainant was married with children and the fact that he had historically shown a dislike for evening shifts particularly. Having said that the respondent reaffirms that the reason the complainant was not selected for the position was due to a number of issues related to his past performance, availability, reliability and general performance.
4.7 In response to the complainant's submission the respondent makes the following points:
- According to the respondent the delay in producing the job description was because the Head Porter was on annual leave until 21st July, 2003 and on his return the details of the job description had to be finalised. Interviews were held on 23rd July, 2003.
- The respondent accepts that the Hospital Engineer did light up one cigarette during the complainant's interview. According to the respondent the Hospital Engineer acknowledges that this was wrong.
- The respondent notes that one of the successful candidates had worked nights in a previous employment and had proved himself very capable in the short time that he had worked in the respondent organisation.
- In relation to the complainant's contention that the respondent had double booked staff for working in Stores during Galway race week the respondent states that there had been a possibility that the Theatre Porter would not be released that week to work in Stores. This was at a time when many of the staff were on annual leave. According to the respondent the Head Porter had not confirmed to the complainant that he was definitely working in Stores that week. It was only when it was confirmed that the other Porter could be released from the Theatre (i.e. late in the afternoon) that the Head Porter could inform the complainant that he would not be needed in Stores and was, therefore, assigned other duties. The respondent notes that the complainant states that he had to work the early shift on that Tuesday whereas records show that he actually worked the late shift.
- In relation to the complainant's reference to the birth of his second child the respondent says that it is the Hospital Engineer's recollection that the complainant saw no point in being off work until his wife was back home from hospital.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was discriminated against by the respondent on the grounds of his marital and family status within the meaning of Sections 6(1), 6(2)(b) and 6(2)(c) of the Employment Equality Act, 1998 when he was not offered the position of Night Porter with the respondent organisation. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
5.2 The facts of this case are that the complainant, a part-time porter with the respondent organisation for some 8½ years was one of three persons to apply for the full-time position of Night Porter. He was unsuccessful in his application and the other two applicants were offered the position. These candidates had been employed by the respondent as part-time porters - one for 2½ years and the other for 3 months. The complainant sought feedback after the interview from one of the two interviewers (i.e. the Head Porter) and it is his contention that one of the reasons he was given for not securing the full-time position of night porter was that it would not suit him because he is married with children. The respondent accepts that there had been a conversation between the complainant and the Head Porter and the fact that the complainant is married with children did arise in the context that the complainant had historically shown a dislike for evening shifts. At the hearing of this claim the Head Porter stated that, prior to advertising these positions, existing full-time porters considered carrying out these functions and decided that, given family commitments, they would prefer not to work the night shift.
5.3 The respondent stated that the reason the complainant was not offered the position was because of his record of inconsistent availability for attendance for work in the role of temporary Porter, his avoidance of evening and late night duties and his general below average performance of his duties. It is the respondent's contention that these were the reasons given to the complainant. According to the respondent the two successful candidates had shown that they were solid, reliable and positive albeit that they had shorter service than the complainant.
5.4 In terms of the reasons for the complainant not being offered the full-time Night Porter position as alleged by the respondent (set out in paragraph 5.3 above) I note that the respondent did not undertake performance reviews of the complainant's work. The respondent stated that the Theatre Nurse had a problem with the complainant's work yet when approached by the complainant she denied that she had any problem with him. It is noteworthy that she put a comment in her diary on that day that she was annoyed at been misquoted to the complainant by the Head Porter and she further stated that, while the complainant was not her first choice, he would not be working in her Department if she had a real problem with him. The respondent provided me with work rosters for the complainant and the other two part-time porters who were successful in this competition. I note, from these records, that they do not show when part-time porters were rostered to work and whey they actually worked. There is no evidence that the complainant rarely undertook evening of late night shifts. It is clear that the complainant worked considerably less hours than one of his colleagues in Theatre and this is consistent with the Theatre Nurse's comment that the complainant would not be her first choice. There is no evidence that the complainant was her last choice. Some examples were provided of where the roster was changed to reflect the fact that the complainant left work early. Consequently his take home pay was reduced and there is no evidence that the complainant made any objections to this.
5.5 The respondent stated that the complainant was spoken to about his work and his attendance on several occasions. The complainant denied this and said that he was spoken to as part of a group of porters when issues arose. I note that the respondent has no evidence to support this contention and the complainant received no written warning about his performance or indeed any other issue e.g. attendance or time-keeping. I further note that the complainant had worked for six months in Stores prior to this interview and the respondent acknowledged that his work performance while there was excellent.
5.6 I note that, at the time of the competition, one of the two successful applicants for the full-time position of Night Porter had the same marital and family status as the complainant i.e. married with one child in the early teens. The other applicant was single at that time. On this basis I am satisfied that it was for reasons other than his marital and family status that the complainant did not get the full-time Porter position. Having said that I am satisfied that the comment to the complainant about his marital and family status in the context of a feedback discussion was a discriminatory comment.
Other Issues
5.7 It is very clear that the respondent failed to observe basic professional standards in the recruitment/promotion process. The interviews were informal and held in inadequate conditions. It was not appropriate that one member of the interview was smoking throughout the interview. There were no notes taken at interview and at the hearing of this claim the respondent stated that score sheets were completed after all the interviews on that same day. I note that these score sheets were not made available to the complainant or his representative until some time later despite repeated requests from both. Even at a meeting with the Chief Executive Officer (CEO) of the respondent organisation and the respondent's representative at the end of September, 2003 (some two months after the competition) there was no indication given to the complainant or his representative that these score sheets existed.
5.8 The complainant met with the CEO on two occasions namely 15th July, 2003 and again on 5th August, 2003. The first occasion related to the allocation of hours to the complainant while the second occasion related to the outcome of the interview. The CEO undertook to investigate the matters and revert to the complainant but I note that he failed to do so which was not acceptable.
5.9 In conclusion I find that a discriminatory comment was made to the complainant about his marital and family status during a feedback discussion. I am satisfied that the complainant was not discriminated against on the grounds of his marital and family status when he was not offered the position of full-time porter as one of the successful candidates had the same marital and family status as the complainant.
6. DECISION
6.1 In view of the foregoing I find that the Bons Secour Hospital, Galway did discriminate against Mr. Connolly on the grounds of his marital and family status within the meaning of Sections 6(1), 6(2)(b) and 6(2)(c) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when his marital and family status was referred to, during a feedback discussion, in relation to the full-time position on Night Porter.
6.2 I further find that the Bons Secour Hospital, Galway did not discriminate against the complainant when he was not offered the full-time Night Porter position.
6.3 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order the following:
(a) that the respondent pay Mr. Connolly the sum of €6,000 by way of compensation for breach of his rights to equal treatment under the Employment Equality Act, 1998 and for the stress suffered as a result of the discriminatory comment;
(b) that the respondent ensures that all staff in Staff Management positions receive training on the provisions of the Employment Equality Act, 1998 so as to avoid future allegations of discrimination;
and
(c) that a Staff Performance Appraisal system is put in place so that the evidence exists where poor performance is being used as a defence in relation to a decision which is made (as in this case).
______________________
Gerardine Coyle
Equality Officer
12th September, 2005