FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : HSE - NORTH WESTERN AREA - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Act, 1998 DEC-E2005-047
BACKGROUND:
2. The worker appealed her case to the Labour Court in accordance with Section 83 of the Employment Equality Act, 1998, on the 11th of November, 2005. A Labour Court hearing took place on the 10th of March, 2006. The following is the Court's determination:-
DETERMINATION:
This is an appeal by the INO (the Union) against the decision of an Equality Officer in a claim alleging discrimination on the disability ground brought by the Complainant. She claimed that her non-selection in competitions in 2001 and 2002 amounted to discrimination on grounds of her disability, in terms of Section 6(2)(g) of the Employment Equality Act, 1998 (The Act) and in contravention of Section 8 of that Act. She also claimed that the Respondent did not do sufficient to accommodate her disability and thus facilitate her return to work. Furthermore, she claimed that she was victimised by the Respondent.Having investigated the complaint, the Equality Officer found that the Respondent did not discriminate against the Complainant on grounds of her disability and in contravention of the provisions of Section 8 of the Employment Equality Act 1998, and did not victimise the Complainant contrary to the provisions of the Act.
The Union on behalf of the Complainant appealed to the Court against that decision.
The Complainant has four separate complaints. The Court proposes to deal with each of these separately.
COMPLAINT I
Application for a position as a Paediatric Link Nurse Specialist (CNM II)
The complaint relates to the following: -
- In July 2001, the Complainant was unsuccessful in her application for an advertised vacancy for a promotional post of Paediatric Link Nurse Specialist at the level of Clinical Nurse Manager II (CNM II). She claims that during the course of the interview, questions were asked of her, which showed an intention on the part of the Respondents to disadvantage her due to the disability from which she was then suffering. In addition, she claims that although her qualifications and experience were greater than the successful candidate she received lesser marks in that field than the successful candidate.
The Complainant also alleges that she was marked down in each of the categories she was assessed upon. She maintained that this was due to her disability and her lengthy absence from work.
The Complainant disputed the marks awarded to her for her work experience. She had ten more years experience in paediatrics and in the Neo-Natal Intensive Care Unit than the successful candidate. The successful candidate was qualified as a sick children’s nurse and had no experience in neo-natal nursing. The Complainant stated that on the other hand she had been instrumental in establishing and developing the Neo Natal/Intensive Care Unit in Sligo General Hospital and had been working in that Unit for almost 20 years including occasionally assuming a management role in the ward.
The Complainant submitted that her marks for Professional Knowledge were very low for someone of her qualifications and experience. In addition, she stated that very low marks were awarded to her in the categories of “special aptitudes” and “special circumstances” (63 and 60 marks out of 100 for each category). She also disputed the marks awarded to her for family dependency/on-going education in which she received a total of 60 marks, 37.7 for driving licence/car and 22.5 for family dependency/on-going education.
She contended by that there was no person on the Interview Board who was capable of assessing her clinical, technical and theoretical knowledge.
The Respondent’s Reply
The Respondent disputed the allegation of discrimination on disability grounds stating that the matter of the Complainant’s disability was not discussed before, during or after the interview process.
The Respondent maintained that while the Complainant met the required criteria and held the relevant qualifications for the Post of Paediatric Link Nurse Specialist, she was evaluated on additional competencies, in line with standard interview practice and found to have underperformed in these competencies.
The Respondent disputed the Complainant’s contention that none of the Interview Board had the appropriate nursing qualifications. It outlined the composition of the Interview Panel, which included a Consultant Paediatrician within the Paediatric Service, a Unit Nursing Officer, the manager of the Paediatric Service and Neo-Natal Intensive Care. The chairperson was a General and Psychiatric Nurse and retired nurse tutor. The chairperson being an external panelist had no knowledge of the Complainant’s disability or absence from work since 1999. Her application form indicated that she was still currently employed in the NWHB. The Respondent stated that the Interview Board asserted that they treated all candidates in accordance with the Board’s Equal Opportunities policy and that they did not use their knowledge of the Complainant’s disability in an unfair or discriminatory manner.
The panel drew up a number of key areas beforehand upon which questions were developed and attributed marks for the critical attributes required to effectively carry out the duties of the post.
The Respondent outlined to the Court that the Interview Panel based its decision on the following key criteria in line with the guidelines issued from the Recruitment Department of the NWHB: -
- Qualifications and/or experience: 100 marks
Organisational Knowledge: 100 marks
Professional Knowledge: 100 marks
Special Aptitudes: 100 marks
Special circumstances: 100 marks
Desirable qualifications and/or experience were awarded an additional 50 marks – diploma 10 marks, degree 20 marks, relevant experience 20 marks.
In response to the complaints regarding the allocation of low marks in comparison to the appointee, the Respondent stated that of the five core competencies assessed, the Complainant failed to proffer enough knowledge and understanding to result in higher scores. It stated that she did not excel in the four areas, which related to the specifics of the new post, e.g. professional knowledge, organisational experience, special aptitudes and special circumstances. The panel concluded that the Complainant did not demonstrate a robust and thorough knowledge or vision of the new post and thus did not acquire marks accordingly.
The Respondent stated that all candidates were asked if they had a full clean driving licence and access to a car, as this was an essential requirement of the job. However, it disputed that the question was asked in the manner implied by the Complainant and held that this point had not been raised prior to the Court hearing. The Respondent explained that this question was not included in the application form as it was not always a core component of advertised positions in the NWHB, therefore, it was necessary to ask the question at the interview.
Secondly, the Respondent also refuted the claim that the question“why haven’t you updated your CV since 1999?”was ever asked of the Complainant. It asserted that the chairperson of the panel asked her questions concerning any courses or additional study she may have undertaken since 1999 as this was not clear from her CV. These questions were asked in the context of the essential requirement of the job, which relate to the requirement concerning “on-going education”.
The Statutory Provisions
The relevant statutory provisions are contained in Sections 2, 6, 8 and 16 of the Employment Equality Act, 1998 (the Act).
Section 2 defines disability in broad terms and, in the Court's view, the Complainant’s disability is covered by the definition contained at Section 2(c):
- (c) the malfunction, malformation or disfigurement of a part of a person’s body,
Section 6 (1) provides that discrimination shall be taken to have occurred where a person is treated less favourably than another is, has or would be treated on any of the discriminatory grounds set out in subsection (2). Section 6(2) lists the discriminatory grounds which include, inter-alia, that of disability.
Section 6(1)(g) of the Act provides that discrimination on the disability ground occurs where a person with a disability is treated less favourably than a person without a disability or a person with a different disability.
Burden of Proof
The allocation of the probative burden in discrimination cases is now determined by Section 85A of the Employment Equality Acts 1998 and 2004. This Section gives legislative effect in domestic law to Directive 97/80 EC on the burden of proof in cases of gender discrimination and to Article 10 of Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Education.
This Section provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be presumed, it is for the Respondent to prove the contrary. The test for determining if the burden of proof shifts to the Respondent was formulated by this Court inSouthern Health Board v Mitchell[2001] E.L.R. 201, Here the Court set out the test, as follows:
- The first requirement of Article 4 of the Directive is that the claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to provethat there was no infringement of the principle of equal treatment.
This test has been consistently applied by this Court in cases under the Acts.
Courts Findings
The Court has carefully considered the written and oral submissions of the parties. In reaching its conclusion, the Court has individually examined each of the complaints made.
- -Question concerning a Driving Licence :
Evidence was given at the hearing that the Paediatric Link Nurse Specialist (CNM II)post was a community based post and required home visits to be carried out.
The requirement to hold a clean driving licence was not stipulated on the job application form, therefore the Respondent submitted that it necessary to ascertain this information at the interview stage of the process. The Complainant alleged that the question she was asked at the interview“have you a clean driving licence?”was a direct reference to her disability and the road traffic accident, which caused her disability and was therefore evidence of discrimination on the part of the Respondent.
A member of the interview panelist gave evidence to the Court. She stated that the Chairman of the Interview Board, who was not aware of the Complainant’s disability, asked this question of all candidates.
The Court has considered whether this particular question was of sufficient significance to raise a presumption of discrimination on the grounds of disability. Having considered the submissions and the evidence before it, the Court is of the view under the circumstances, where the requirement to travel to the homes of patients was an integral component of the job, it was not an unreasonable question to ask and was not of such significance to raise such an inference.
- -Question concerning Ongoing Education:
The advertisement for the post in the newspaper stated that candidates must give a “Commitment to undergo further study in specialist practice”.
As further evidence of her allegation of discrimination, the Complainant referred to a question she was asked at the interview“why haven’t you updated your CV since 1999?”
The Complainant’s CV stated that since qualifying as RGN/RSCN in 1972, her latest formal qualification had been undertaken in 1980 “Neo-Natal Intensive Course”. The CV listed details of 1-Day courses undertaken between 1984 and 1999; whereas the appointee had qualified with Certificates in 1983 and 1991 and with Diplomas in 1995 and 1998.
Again the Court must consider whether this question was of sufficient significance to raise a presumption of discrimination on the grounds of disability.
The Court finds that in the context of the essential requirement of the job, which required candidates to demonstrate a “Commitment to undergo further study in specialist practice”,the question posed was a reasonable one and therefore, does not accept that it was discriminatory or raised an inference of discrimination on the grounds of disability.
- -Marks at interview
1. The Complainant is a qualified Registered General Nurse, Registered Sick Children’s Nurse with post-graduate courses in Neo-Natal Intensive Care and a certificate in neo-natal resuscitation. She had nearly 29 years experience of post registration nursing experience, 27 of which involved Paediatric specialism.
2. The appointee was a qualified Registered General Nurse, Registered Sick Children’s Nurse and a Registered Mid-Wife, with postgraduate Diploma in First Line Management, and a Diploma in Asthma Care and a Certificate in Foundation Counseling Skills. This candidate had over seventeen years of post registration nursing experience, almost all of which involved paediatric specialism.
The Union submitted that the Complainant felt that she was more suitably qualified for the post than the appointee due to her extensive experience in neo-natal/intensive care and that she was more professionally qualified than two of the members of the interview panel. She had been responsible for the establishment of the neo-natal/intensive care unit in Sligo General Hospital. However, evidence was given on behalf of the Respondent by the Line Manager for Paediatrics and Neo-Natal Services that the requirements for the post were for “the full gambit of paediatric liaison and not just neo-natal - it was designed for babies from 6 weeks onwards”. The appointee similarly had a significant number of years experience in paediatrics.
The scores for this competition indicate that out of a total of 100 marks awarded for Qualification/Experience, 50 marks were awarded for the essential requirement of holding RGN/RSCN for a minimum of 5 years plus 2 years in specialist practice (paediatrics). Marks were also awarded for other desirable qualifications /experience; 20 marks for a Degree, 10 marks for a Diploma and a maximum of 30 marks for relevant experience.
The Respondent stated that both the Complainant and the appointee scored 50 out of 50 marks for the essential qualification requirements and out of a possible 50 marks for desirable qualifications /experience, both the appointee and the Complainant scored 30 marks. Therefore, they were given equal weighting for both their qualifications and experience.
Having examined the evidence submitted from both sides, the Court accepts the Respondent’s position that the Complainant clearly had the required qualifications and experience. However the Court is of the view that the longer paediatric experience held by the Complainant, 27 years as against 17 years held by the appointee does not automatically give the Complainant a right to higher marks. Both clearly had substantial experience in this area.
The Complainant was given recognition for her Neo-Natal Intensive Care course, which was equated to a Diploma and thereby awarded the appropriate 10 marks. The appointee held two Diploma qualifications. The Court does not accept the Complainant’s contention that as she had more extensive experience in neo-natal/intensive care than the appointee that she was entitled to succeed, as this was not an essential requirement of the post.
Furthermore, the Court accepts that as the post was community based and required special skills in terms of home based care for children with chronic illnesses being cared for in the community, the four categories mentioned above took on an importance equal to the essential qualification and experience criteria and were marked accordingly. The overall marks awarded to the Complainant were 348 out of 500, whereas the appointee was awarded 430 marks.
The Court notes that the overall difference in marking between the two candidates concerned relates to the four additional categories. These relate to special aptitudes and circumstances relating to the applicant’s organisational/professional knowledge, interpersonal skills, communication skills, numeracy skills, motivation, assertiveness etc and to special circumstances relating to shift work, corporate responsibility, a driving licence, access to a car, call out etc. The Union contended that she was deliberately marked down in each of these categories due to her disability and her resultant absence from work. The Respondent submitted that she failed to proffer enough knowledge and understanding in these areas to result in higher scores. The Court can find no evidence to substantiate the Union’s allegation. The Court is satisfied that facts have not been established to conclude that the interview was conducted in a discriminatory manner or that the Complainant’s disability influenced the choice of the Interview Board.
With regard to the allegation concerning the qualifications and experience of the persons involved on the Interview Board, the Court cannot concur with the Complainant’s view that the make up of the interview panel for the competition was deficient, as it did not contain anyone with equivalent nursing experience.
In conclusion, the Court is satisfied that the Complainant’s qualification and experience do not outweigh those of the appointee to such an extent that a prima facie case of discrimination is made out and that the onus then falls on the Respondent to justify the appointment. Additionally, the Court finds no grounds to find that marking system was not objective and transparent.
Therefore, the Court does not find that the Respondent discriminated against the Complainant in her application for the Paediatric Link Nurse Specialist (CNM II)post in July 2001.
This Court has consistently taken the view that it is not the responsibility of the Equality Officer or this Court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the Complainant was discriminated against on any of the grounds outlined in the Act.
The Court therefore finds that in relation to her first complaint the Complainant has not established facts from which a prima facie case of discrimination may be inferred. Accordingly the Complainant cannot succeed in this aspect of her claim.
COMPLAINT II
Neonatal Intensive Care and Special Baby Unit (CNM II)
The complaint relates to the following: -
The Complainant was also unsuccessful in her application for a second competition in June 2002 for a promotional post of Neonatal Intensive Care and Special Baby Unit also at CNM II level.
The Complainant applied for this post in July 2002, six months after she had lodged a complaint of discrimination with the Equality Tribunal. The Complainant alleges that she was victimised in the course of her application for this post. The Court will deal with this allegation later in its determination.
Firstly, the Complainant submitted to the Court that there were considerable discrepancies in the scoring for the second post and that the Board deliberately awarded her marks, which were not commensurate with her qualifications and experience and were even lower than those awarded in the previous competition. She particularly queried how she could have scored so low in this competition when she had been instrumental in setting up and developing the Neonatal Intensive Care Unit in the Hospital. The successful applicant only received her neo-natal nursing certificate twelve months prior to the appointment. The Complainant said that it is notable that the Respondent never produced the comparative marks and experience for the successful candidate in this instance.
Following this interview she was informed that she was a suitable candidate but that there was at least one other candidate with a higher placing.
The Respondent’s reply
The Respondent maintained that it was not possible to compare marks between the two competitions as the competencies and skills sought were entirely different. In this competition, the Complainant received top marks for qualifications and 20 out of 50 for experience. This was a nurse management position and the Complainant’s management experience was limited to one and half’s years acting up experience, whereas the appointee had six years management experience in a large Neo-Natal Unit.
When the Union sought information regarding this competition in December 2002 it did not clarify its reasons for doing so and did not indicate that alleged discrimination had taken place with respect to the competition. The matter only came to light in the Union’s submission to the Equality Tribunal in March 2003. Details of interview marks, notes and curriculum vitae for applicants were submitted to the Court with the Respondent’s submission.
Court’s Finding
Applying the principles outlined earlier in this determination, and
having examined the marks awarded, the Court notes that both the Complainant and the appointee were awarded 50 marks for qualifications - the maximum award in this category. Both had similar levels of experience working in neo-natal unit - in the region of 27 years.
However, the Complainant was awarded 20 marks for experience and the appointee was awarded 35 marks. The Job Specification stated, “it is also necessary to have good clinical, managerial and interpersonal skills”. The Respondent stated that the level of management experience in Paediatrics and Special Care Baby Unit attained by the appointee was greater than that of the Complainant, hence the higher marks. The appointee also scored higher than the Complainant in respect of the marks awarded for Organisational Knowledge, Professional Knowledge and Special Aptitudes. Overall, the appointee scored substantially higher marks than the Complainant.
The Court accepts the Respondent’s explanation for the differences in the respective marks and therefore finds that the Complainant has not established facts sufficient to sustain a prima facie claim of discrimination.
COMPLAINT III
Failure to provide reasonable accommodation for the Complainant’s disability
The complaint relates to the following: -
- It was contended that the Respondent had contravened section 16 (3) of the Act by failing to provide her with reasonable accommodation and failure to provide her with reasonable job opportunities.
The Union also submitted that the Complainant was treated less favourably than another employee would have been because of her disability when her employer refused to facilitate her to undertake a management course.
The Respondent’s Reply
The Respondent submitted that it has been attempting to source appropriate and alternative employment for the Complainant through the guidance of its Occupational Health Service since 2001. However, this has been without success, owing to the mobility restrictions imposed on the Complainant as a result of her accident, which still continue. Efforts to find alternative positions outside of the clinical area were not successful as the Complainant was not interested in these positions.
Having assessed the risks associated with her condition, a recommendation from the medical officer dated 23rd April 2002 stated:
- the Complainant “cannot work in Paeds with the “hands on” commitment, to discuss with[the named Director of Nursing]job possibilities, any proposed job will be assessed by the Occ. Health staff to ensure its suitable”.
The Respondent stated that it was fully aware of its obligations to explore and source alternative options of employment for employees who have been partially or wholly disabled during the course of their employment. It accepted that these posts might differ entirely from the employee’s substantive post, as there may not be a similar or appropriate post available. It stated that it suggested posts outside her area of competency; these suggestions were not an attempt to trivialise or negate the valuable contribution she had made, but an attempt to ensure her continued role as an employee with the Respondent.The Respondent submitted that the Director of Nursing had discussions with the Complainant over a four-year period regarding possible alternative suitable posts in the following areas:
-Ward Clerk
-Bed management
-Radiology Post (offered on 1st May 2002)
-Phlebotomy Nurse Post (offered on 26th November 2002)
However, the Complainant was not interested in posts related to Ward Clerk or Bed Management, therefore no formal offers were made. The Occupational Health Department deemed her medically unfit to work in the Phlebotomy Nurse Post; and as funding did not materialise for the Radiology Post due to limited resource availability for the development of the service, that post never came about.
In relation to the Phlebotomy Nurse Post, the Respondent submitted a letter dated 10th December 2002 requesting the Complainant to inform the Director of Nursing of her decision to return to work as soon as she had taken advice from the Occupational Health Department. In January 2003, the Director of Nursing wrote to the Personnel Department, enclosing a medical assessment on the Complainant, this letter states:
- “after giving due consideration to the findings of that assessment I am unable to identify any nursing post that might be suitable”
Other efforts were made by the Respondent to facilitate her return to work. By letter dated 12th January 2004, the Personnel Department wrote to her asking her to make contact with the Occupational Health Department in order to assess her fitness to return to work. The Respondent encountered delays owing to the Complainant’s non-availability to engage with the Occupational Health Unit and the Personnel Office during 2004, which had resulted in difficulties identifying possible acceptable outcomes.
On 11th May 2004 the Respondent requested the Complainant to attend the Occupational Health Services to provide an assessment as to whether she was fit to resume duties in her substantive post as Paediatric Staff Nurse. The Complainant attended for assessment on 21st June 2004, and was assessed“as being unfit for work as a staff nurse in Paeds”.
Management Course
The Respondent accepted that the Complainant was turned down for a management course and stated that her application was rejected in line with HSE policy, which stated that if a person is certified unfit to work, then this extends to work related training also. Approval to undertake work related management training is subject to an employee’s full recovery and return to work. Furthermore, the particular course was a management action course, which was practically oriented and required applicants to put the learned information into practice when they returned to their workplace. As she was not in a position to return to the workplace she was not be in a position to benefit from such a course.
Statutory Provisions
The duty to provide special treatment or facilities, for which the Complainant contends, is derived from section 16 of the Act. It provides as follows:
- 16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
- (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
- (3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
- (3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
Court’s Findings
The Union on behalf of the Complainant submitted to the Court that the Respondent’s failure to provide reasonable accommodation in facilitating her return to work gave rise to a claim of discrimination under the Act in its own right, on the basis that there is an absolute obligation on the employer to provide reasonable accommodation. The Court does not accept this submission.
The question of the nature and extent of an employer’s duty to an employee with a disability was dealt with by a division of this Court in Determination EDA0419 –An Employer and A Worker,issued on 5th January, 2005. In relation to the effect of section 16, the Court considered the consequence of failure to provide reasonable accommodation and stated as follows:
- “In this case it is necessary to consider the legal consequences of an employer’s failure to fulfill the duty imposed by section 16(3). It is clear from the Act as a whole that a failure to provide reasonable accommodation in accordance with this section does not, in or of itself, constitute discrimination. Discrimination, for the purpose of the Act, is defined by section 6. That definition does not include any reference to a failure to fulfill the duty imposed by section 16(3). Further, there is nothing in the Act which gives an independent cause of action for an employer’s failure to provide special treatment of facilities in accordance with that subsection.”
Section 16 of the Act can provide an employer with a defence to a claim of discrimination on the disability grounds, if the person is not fully capable of performing the duties of a post.
A claim cannot solely be founded on the claim that an employer failed to provide reasonable accommodation. It can only be used as a defence; therefore the claim under section 16 (3) must fail. A failure to provide reasonable accommodation for someone with a disability may negate the defences available to an employer under section 16(1); however, it cannot constitute a separate ground of complaint under the Act.
For the sake of clarity however, the Court finds that if the Complainant had made a claim of discrimination under the Act on the basis that she was able to return to work, albeit with the assistance of special treatment and or facilities and the Respondent had on the grounds of her disability, failed to allow her to return to work, the Court is satisfied that the Respondent made substantial efforts to facilitate her return to work.
No evidence has been furnished to the effect that the Complainant attempted to seek alternative positions or as to the type of work she might have been able to do with the assistance of special treatment and facilities. However, the Respondent produced evidence to show that it had considered her for a number of positions to facilitate her return to work.
The Union on behalf of the claimant was critical of the Respondent for its failure to offer the complainant alternative positions. However, the Court notes that in its submission to the Equality Officer, the Union stated that the Complainant had met with the Director of Nursing:
- “on more than one occasion to discuss the possibility of a return to work. It was suggested to Ms. Flanagan that perhaps she may take a staff nurse post outside of neonates and paediatrics, suitable to her disability.”
No evidence has been presented to establish that the Respondent impeded the Complainant on the grounds of her disability either from returning to her duties or in finding an alternative position within the Health Service. The Court is also satisfied that the Complainant did not assist this process by indicating the type of work she might have been able to do with assistance.
Therefore, a claim of discrimination on the grounds of disability in respect of the failure of the Respondent to provide reasonable accommodation has not been made out.
Management Course
The Court has considered this allegation of unfavourable treatment on the grounds of disability and has difficulty accepting the Respondent’s policy, which prohibits employees from attending work related courses when certified unfit for work. However, in the particular circumstances of this case, the Court accepts the Respondent’s arguments that the management course concerned was a practical orientated course and required participants to put into practice the learned information immediately following the course. Therefore, the Court does not find that the Respondent discriminated against the Complainant contrary to the provisions of the Act, when it did not sanction her approval to attend the management course in question.
COMPLAINT IV
Victimisation
The complaint relates to the following:
- The Complainant alleged that the Respondent victimised her by (i) attempting to prevent her from competing for the post in June 2002 and (ii) taking her off the pension rate of pay in June 2004.
In response to her application for the promotional post in June 2002 she received correspondence stating that her application was not being considered, as she was not sufficiently qualified. She argued that her Neo Natal Intensive Care Certificate obtained in the UK in 1980 was well known to the Respondents and was in their possession already and therefore, she had the necessary qualifications. Following representation by the Union on this matter, the Respondent decided to interview her for the post.
Furthermore, the Complainant held that the Respondent’s actions in taking her off the pension rate of pay in June 2004, two days before the Equality Officer’s hearing is further evidence of victimisation.
The Respondent’s Reply
The Respondent refuted the allegation that the Complainant was victimised in her application for the post of Clinical Nurse Manager II in the Neonatal Unit in June 2002. It stated that this allegation only came to light in the INO’s submission to the Equality Tribunal in March 2003.
The Respondent explained that when the Complainant’s application was received, the Recruitment Section in Sligo General Hospital excluded her from the competition, as she did not satisfy the essential requirement whereby a candidate must “Hold a Certificate in Neonatal Intensive Care or equivalent”. This exclusion was in accordance with their rigid and transparent recruitment procedures. These circumstances arose as the qualification details on her CV stated “Jan 1980 to May 1980 Queen Mother’s Maternity Hospital Neo-Natal Intensive Course”. The information omitted to fill in the details required under the heading “Date Conferred and Precise Grade Achieved”. Therefore, in the absence of the required details, the Recruitment Section in accordance with the guidelines concluded that her qualifications did not comply with those set down by An Bord Altranais.
However, following representation on her behalf by the INO it was agreed to include the Complainant’s application, on the grounds that some flexibility should be shown in the case of qualifications acquired prior to the availability of more recent nursing related training programmes. Therefore, her qualifications were eventually viewed as meeting the requirements set down by An Bord Altranais. The Respondent held that contrary to there being victimisation, every effort was made to include the Complainant on the panel.
The Respondent responded to the allegation concerning her withdrawal from the pension rate of pay in June 2004. In January 2004, the Respondent requested the Complainant to attend the Occupational Health Department for assessment on the extent of her fitness to discharge her duties or duties associated with suitable alternative posts. The Complainant told the Court that it was not that she refused to attend but that there was no job offers to discuss, so she saw no point in attending. She cancelled the appointments and explained that she needed to discuss the situation with her Union representative.
The Respondent stated that it had applied flexibility regarding the application of the guidelines issued by the Department of Health and Children on “Pension Rate of Pay”. However, her failure to attend the Occupational Health Department resulted in her loss of pension.
During the period of her absence, the Complainant was initially on full pay for three months, half pay for six months and on a pension rate of pay from 6th December 2000 and was due to expire in March 2004 as per Department of Health and Children regulations. However, the Director of Nursing requested a further extension of three months “in order to facilitate robust explorations of options” with the Complainant “regarding either her return to the workplace, leave of absence or retirement on permanent infirmity” grounds. Since June 2004 she has received no remuneration from the Respondent.
A letter dated 4th February 2004 from the Personnel Administration Manager of the North Western Health Board, relating to the Complainant’s pension rate of pay states:
- “On expiry of her sick leave in December 2000, approval was obtained from DOHC, to pay Pension Rate of Pay. Payment of Pension Rate of Pay is made on a short-term basis and on the basis that there is a reasonable expectation of the employee’s return to work. This payment has continued since 6.12.2000 and, on recommendation, has been extended and re approved by the DOHC each quarter. The current approval is due to expire in early March 2004.
As this rate of pay has been paid to Ms. F for a lengthy period, the criteria for continuing payment is no longer valid. In the circumstances, an application to the DOHC, for further approval for an extension of Pension rate of pay will not be made. Therefore, it will be necessary for you to explore with the employee the options available in returning to work, leave of absence or of availing of retirement on permanent infirmity. An early decision on this is necessary, as current rate of pay will cease on 5th March 2004.”
- “On expiry of her sick leave in December 2000, approval was obtained from DOHC, to pay Pension Rate of Pay. Payment of Pension Rate of Pay is made on a short-term basis and on the basis that there is a reasonable expectation of the employee’s return to work. This payment has continued since 6.12.2000 and, on recommendation, has been extended and re approved by the DOHC each quarter. The current approval is due to expire in early March 2004.
- “I understand pension rate of pay has been extended for a lengthy period of time but would recommend a final payment of pension rate of pay for a further three months with effect from 6th March 2004.”
- “I understand pension rate of pay has been extended for a lengthy period of time but would recommend a final payment of pension rate of pay for a further three months with effect from 6th March 2004.”
The Statutory Provisions
Section 74(2) defines victimisation as occurring where: -
- “the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith –
- (a) sought redress under this Act or any enactments repealed under this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause under any such repealed enactment”.
The Court’s Findings
The Court has considered at length the comprehensive submissions of the parties and has examined whether the Complainant’s complaint of discrimination made subsequent to the first post influenced the Respondent’s decision not to appoint her to the second post.
The Court can find no grounds to accept the Complainant’s contention that her initial exclusion from the competition by the Recruitment Section in Sligo General constituted victimisation. The essential qualification for the post stated that the candidate must hold a Certificate in Neo-Natal Care or equivalent, (6 month course). The Complainant’s CV listed a course she had completed in Queen Mother’s Maternity Hospital from January to May 1980, without specifying the precise grade achieved.
It is accepted that the Complainant had not previously applied to an Bord Altranais for recognition of her course. Therefore, the Court is of the view that the Recruitment office’s query was understandable in the circumstances and does not accept that the failure to place the Complainant on the panel for interview at first instance constituted discrimination under the Act.
Pension rate
The Court has considered the evidence adduced by the Complainant in support of her allegation of victimisation and the rebutting evidence on behalf of the Respondent and does not regard this complaint as having been made out. The Court is of the view that the Respondent made every attempt possible to prolong payment of the pension rate to the Complainant and indeed succeeded in doing so for in excess of three and a half years. The regulations stipulate that payment of a pension rate of pay should only be paid in circumstances, which there is a reasonable expectation of an employee’s return to work within a short time.
The Court concludes that the Union’s allegation of victimisation when the Complainant was taken off the pension rate of pay on 6th June 2004, two days before the Equality Officer’s hearing cannot be sustained. The Court cannot see how the two events could constitute victimisation under the 1998 Act. The Court sees the two events as coincidental and does not accept that the impending Equality Tribunal hearing had any influence on pension rate of pay and was not material to the reasons for its discontinuation.
DETERMINATION
The Court finds that the Respondent did not discriminate against the Complainant on grounds of her disability and did not victimised the Complainant contrary to the provisions of the Act. Accordingly, the decision of the Equality Officer is affirmed and the appeal disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
3rd August, 2006______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.