EMPLOYMENT EQUALITY ACTS & PENSIONS ACTS
DECISION NOs. DEC-E2015-153 & DEC-P2014-004
PARTIES
Agnes Sangweni
(Represented by Mark O’Connell B.L instructed by Kenny Sullivan Solicitors)
-V-
St James’ Hospital
(Represented by IBEC)
File reference: EE/2014/244 & PEN 2014/02
Date of issue: December 2015
HEADNOTES: Employment Equality Acts & Pensions Acts -Race-Civil Status - promotion
1 DISPUTE
1.1 This dispute concerns a claim by Ms Sangweni that she was discriminated against by her employer, St James’ Hospital on the grounds of race and civil status contrary to section 6 (2) (b) and (h) of the Employment Equality Acts in respect of access to promotion and grading under the terms of Section 8 (1) (d) and under the Pensions Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 2nd May 2015 under the Employment Equality Acts and Pensions Acts. On 2nd September 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Pat Brady, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on September 9th 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 PRELIMINARY MATTERS
2.1 The Complainant had failed to respond to correspondence of February 2nd regarding the request in respect of a statement for case Number PEN/2014/02. The Complainant was put on notice at that time that if no statement was received by March 3rd, 2015 the complaint could be dismissed in accordance with Section 102 0f the Pension Acts. The Complainant indicated she wished to pursue the claim under the Pension Acts and the Equality Officer said he would deal with this as a preliminary matter in due course, if that became necessary.
2.2 The complainant withdrew her claim under the Civil Status ground at the hearing.
3 COMPLAINANTS' SUBMISSION
3.1 The complainant is a nurse/midwife qualified in South Africa who commenced employment at St James’ Hospital on a temporary basis on July 10th 2000 and on a permanent basis from the following September 26th started work for the respondent in 1995. She worked in the ICU.
3.2 Part of the settlement terms to a national industrial dispute in the nursing service included the creation of the grade of Senior Staff Nurse (SSN) and this was established on foot of a Labour Court Recommendation and further administrative letters from the HSE.
3.3 Subject to meeting various eligibility criteria and submitting an application appointment to the grade was automatic. Appointments to the grade were suspended for the duration of the Public Service embargo in March 2009 until 2013.
3.4 The Complainant became eligible to be considered for the grade in June 2007 and became aware of its existence at some point in that year as a result of a casual conversation with a co-worker. On contacting the HR department of the hospital to make further inquiries she says she was told that she was already on that grade. (The respondent investigated this claim but could find no record of it. No evidence was presented to the Tribunal in support of it).
3.5 Whereas the date is not clear it appears that at some stage in 2008 she became aware of the process for applying and that it required the submission of an application form but she did not make an application. Then in March 2009 the Public Service pay embargo came into force and when she next applied (probably in 2009) she was told that no applications were being processed because of the embargo.
3.6 She next applied in October 2013 when she became aware from colleagues that the embargo had been lifted and in due course she was appointed to the SSN grade in November 2013 with retrospective effect to July of that year.
3.7 She then sought to have the appointment made retrospective to 2007 on the basis that she had not been advised of the applications procedure and had been misled as to her actual status. Following an investigation of her complaint by the HR Department, and, according to it, a lack of corroboration of the Complainant’s version of what she was told in 2007, as well as the terms of the scheme she was told that nothing further could be done.
3.8 She says that she lost out on the increase in her salary (about €7200) with consequent knock on effects for her pension and says that the hospital had an obligation, particularly in respect of employees who were not in a trade union or who might be at a disadvantage because they had poor language skills or were not in effective networks to more effectively communicate the correct application procedure.
3.9 In her own evidence the Complainant said she had not noticed that her pay had not changed nor did she check it after being told that she was on the SSN grade despite the fact that this would have represented an increase of about €50 per month.
3.10 She also felt that she had not been allowed to grow as much as a person as other employees had been and in relation to the position of SSN she felt that all the Irish nurses who were eligible got promoted to the grade.
3.11 The complainant also pointed out that following the disputed 2007 incident involving the complainant’s enquiry regarding the SSN the respondent changed the system for making applications in such a way that had it been in force then it could have allowed the complainant to proceed to the SSN grade.
4 RESPONDENT'S SUBMISSION
4.1 The Respondent rejected the assertion that the Complainant had poor English and said that she had good written and spoken English. RS had been the complainant’s manager in the ICU department and gave a very positive endorsement of her as a nurse; saying that she was a good communicator and had enjoyed good relationships with her nursing colleagues and members of the multi-disciplinary team. RS had given the complainant a reference in which she described her as having ‘excellent’ communication skills.
4.2 MD, a HR Business Partner in the respondent hospital outlined the background to the creation of the grade and the impact of the public service embargo which caused promotions to the grade to be halted between 2009 until it was removed in 2013. He said that prior to the complainant’s issue arising there had been no system of prior notification to eligible nurses but that this had now been changed and nurse managers are told to advise their staff of the position. He said that this did not alter the position in relation to the complainant but was part of ongoing improvement the Hospital makes in its systems. He accepted that there were defects in the previous system but not in any way, which grounded a claim of discrimination.
4.3 MD also said that the complainant’s appointment was backdated by six months.
4.4 The respondent also observed that between the alleged incidents in 2007, when the complainant said she was told she was on the grade, and then subsequently finding out that an application was required she could have applied at any time during 2008 but failed to do so.
4.5 The Respondent said that the public service embargo affected all public service employees equally and could not be a basis for a claim of discrimination. It provided statistics that showed the numbers whose application were adversely affected by the embargo. There were Irish: 6, Filipino; 6, Indian; 5, Romanian; 2 and one each from S. Africa, China and Nepal.
4.6 It also submitted statistics for the total number of those promoted to the SSN grade in the previous eight years which indicated a broad spectrum of nationalities; Filipino; 66, Irish; 32, Indian; 30, South African; 6, Romanian; 3, Chinese; 2, and one each from Britain and Nepal.
5 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 I have to decide if the complainant was treated in a discriminatory manner on the grounds of her race contrary to section 6 (2) (h) of the Employment Equality Acts and the Pensions Acts. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
5.2 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
5.3 I do not consider that the complainant established a basis that permits me to infer discrimination. Accordingly the burden of proof remained with her to establish her case.
5.4 She failed to do so. The complainant was articulate and on the evidence of her manager enjoyed good relationships with her co-workers. Her claims on this point lack credibility. Whereas the hospital has changed its system and is now more pro-active in the promotion of awareness of the SSN grade the previous practice cannot be said to have been discriminatory, and was not in relation to this complainant.
5.5 Given my conclusion on that point nothing turns on the fact that she failed to make an application despite having a considerable window of opportunity to do so. The complainant could not explain why she did not do so. Nonetheless, taken with other facts in the case it represents an indication that the complainant had within her own hands the opportunity to remedy a problem she now attributes to the hospital.
5. DECISION
5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Employment Equality Acts and the Pensions Acts that:
· The actions (or alleged inaction) of the Respondent did not represent discrimination on the race ground contrary to section 6 (2) (h) of the Employment Equality Acts and I dismiss the claims under both the Employment Equality Acts and the Pensions Acts.
· The claim on the civil status ground was withdrawn at the hearing
________________________
Pat Brady
Equality Officer
December 2015