DEC-E2016-027

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-027

Robert Kandharsingh

(Represented by Deirdre Cummins BL, instructed by Murphy Solicitors)

v

HSE South

(Represented by Comyn, Kellegher & Tobin Solicitors)

Date of Issue: 9 February 2016 File No. EE/2010/907

Keywords

Employment Equality Acts - discriminatory treatment - race - promotion - prima facie case

1. Dispute and delegation

1.1 This dispute concerns a claim by Mr. Robert Kandharsingh (hereafter "the complainant") that he was subjected to discriminatory treatment in his working conditions contrary to section 6(2)(h) of the Employment Equality Acts, 1998 to 2011, in relation to access to promotion to the position of Acting Clinical Nurse Manager 2 (A/CNM2) on grounds of race during the course of his employment with HSE South (hereafter "the respondent").

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 16 December 2010 under the Employment Equality Acts. On 21 May 2014, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 31 October 2014. Final documentation was received on 3 November 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. Summary of Complainant’s case

2.1 The complainant is a psychiatric nurse by profession and is employed as a mental health staff nurse. He commenced full time permanent employment with the HSE in August 2002 where he worked at Location A. He was subsequently transferred to Location B in October 2006. He commenced work in Psychiatric Unit C (Ground Floor) in February 2007. The complainant worked on a rota whereby every six months staff would rotate from one rota to another, i.e. from January to June staff would work Monday, Tuesday, Wednesday and alternate Sundays and then from July to December staff would work Thursday, Friday, Saturday and alternate Sundays. Prior to 4 July 2010, the complainant was on compassionate leave for a week and on his return, he checked the rota in accordance with his usual practice and noted that his name was listed as working on the First Floor of Psychiatric Unit C which provides long-term psychiatric care. The complainant asserts that transfers between different floors in a Psychiatric Unit do not happen regularly and in the event that there is a shortage of staff on one floor, staff on another floor would cover. The complainant contends that it was highly unusual for him to be named on the rota as being moved to the First Floor of Psychiatric Unit C.

2.2 The complainant states that he was changing rota (described as changing “pass”) on 8 July 2010 at which point he would be transferring to a rota whereby he would work Thursday, Friday, Saturday and then alternate Sundays for the following six month period. The complainant was aware of the fact that on the Thursday rota, Mr. M, who was Acting Clinical Nurse Manager 2 (A/CNM2) was due to be promoted to Acting Assistant Director of Nursing. As a consequence, his post would have been vacant and the complainant submits that he would therefore have been the next most senior person on the rota and would have been promoted to Acting/CNM2 as he was the most senior and longest serving staff member on the male ward, having worked on the ground floor for the past four years. The complainant contends that it was custom and practice that posts were not advertised in the respondent organisation and accordingly by moving the complainant to a different ward, it resulted in an opening for promotion to Acting/CNM2 for another psychiatric nurse, namely Mr. O, who had lesser service and experience than the complainant.

2.3 The complainant submits that none of the other staff on the male ward on the ground floor were moved to any other ward apart from the complainant. He asserts that there is no rotational policy in the respondent organisation. The complainant states that he attended the office of the Acting Assistant Director of Nursing, Mr. C and he requested an explanation with regard to his move/transfer to the First Floor of Psychiatric Unit C. The complainant asserts that Mr. C did not give him an explanation but merely confirmed that there were no problems or complaints about the complainant’s work and confirmed that he would also be moving other staff. The complainant states that the result of him being transferred to the First Floor meant that he would not get the promotion to Acting CNM2 on the Thursday rota/pass and was therefore at a loss of €4000 per year. Mr. C (Acting Assistant Director of Nursing) confirmed to the complainant that the decision had been agreed by Mr. K, the Acting Director of Nursing. The complainant confirmed that he was happy to remain where he was. Mr. B, staff nurse (who was replacing the complainant on the ground floor) confirmed to the complainant that he did not want to work on the Ground floor.

2.4 The complainant submits that there are no written procedures for promotion, no interview process or scoring/marking sheets and there is a complete lack of transparency in promotions. The complainant asserts that posts are not advertised. The complainant submits that there are clear procedures set out on the Psychiatric Nurses Association website in terms of applying for posts and promotions and that those procedures are not followed by the respondent. The complainant asserts that he was discriminated against on the grounds of his race and transferred to an alternative position so as to purposely deprive him of promotion. The complainant is Mauritian and non-white. The complainant states that the person who got the promotion, Mr O, has less service and experience than the complainant. The complainant submits that the fact he was moved from his post, with no history of a rotational policy, immediately prior to him being in a position to be promoted to Acting CNM2 is a fact of sufficient significance to raise the presumption of discrimination. The complainant cites the following caselaw in support of his case Massinde Ntoko v Citibank [2004] 15 ELR 116, Melbury Developments Ltd v Valpeters DEC-E2009-019, Davis v Dublin Institute of Technology and Health Board v Mitchell [1999] ELR 120.

2.5 The complainant submits that in the case of Jennifer Mey v St. James Hospital, DEC-E2007-016, the complainant in question was from South Africa and was non-white. She commenced work in the respondent organisation in February 2001 and was assigned to the Rheumatology department in May 2001. In September 2004, the position of Rheumatology Clinical Nurse Specialist was advertised and the job title was subsequently changed to Rheumatology Clinical Nurse Manager II. The complainant was one of two applicants interviewed for the position. The other applicant who was of Irish nationality was successful in her application. The complainant argued that she was better qualified and had more experience than the successful candidate. The complainant submits that in this case, the Equality Officer found that the respondent had failed to implement fair, open and transparent procedures in the interview process. The Equality Officer also found that the complainant was both better qualified and had more experience than the successful candidate and found in favour of the complainant.

2.6 The complainant makes the point that the table submitted by the respondent in evidence regarding the nine staff members transferred is undated and unsigned and he highlights that it would seem to have been compiled subsequent to the oral hearing in the case. The complainant submits nothwithstanding this, it does not serve to support the respondent’s assertion that the complainant would not have been the member of staff with the longest period of service on the male ward (Ground Floor Unit C - Thursday pass) for the purposes of promotion to Acting CNM2 but for his transfer to the First floor Unit C in July 2010. The complainant’s representative states that the table provided by the respondent appears to suggest that the complainant was employed on Ground floor Unit C for a mere two months before being transferred to First Floor Unit C where it suggests he has been employed for a period of 53 months. The complainant’s representative states that this is completely inaccurate and that in fact the complainant began working on the male ward Ground floor Unit C in February 2007 and every six months he rotated from the Monday Pass to the Thursday Pass but always remained on the Ground floor. The complainant’s representative states that the column relating to length of time of the complainant at previous location in Ground Floor Unit C should read 41 months.

2.7 The complainant was shocked and disappointed to be transferred to the First Floor Unit C on 4 July 2010. He was rostered on the First Floor for a period of six months after which he was rostered back on the Ground Floor. The complainant is only aware of six persons who were re-assigned in July 2010. The complainant states that he was never informed of any reason for the move nor was the other male employee given a reason and they were the only men who were transferred. The complainant’s representative states that the first time a reason of “skills mix” was raised as a reason for the move was at the hearing. The complainant’s submits that as far as he is aware the following staff were moved and reasons given as follows;

Ms. K: requested to move from the First Floor to the Ground Floor

Ms. B: moved from Ground Floor to the First Floor. She did not request same but had to move because (i) she was engaged to another member of staff and there is an informal agreement that spouses cannot work on the same pass or on the same ward and (ii) Ms. K’s request to move meant space had been created.

Ms. C: moved from GB Hostel to St Michael’s Unit to facilitate Ms. Mc’s move

Ms. Mc: was pregnant, moved to GB Hostel prior to change of pass for Health and Safety reasons.

Ms. M: requested and was moved back to St. Michael’s Unit in April 2010.

Mr. B: move not requested

Complainant: move not requested

The complainant submits that none of the other staff from the male ward Ground floor were moved to any other ward apart from the complainant. The complainant maintains that he referred the issue to his union representative, Mr. Mc and this fact is corroborated by the written statement submitted by Mr. Mc together with testimony from the President of the PNA at the hearing. The complainant states that the respondent did not address his complaint about his treatment of being discriminated against on grounds of race.

2.8 The complainant maintains that the notion of “skills mix” being put forward as an explanation for the move is wholly implausible. No other male employees were moved. Female staff members do not work on the male ward in Ground Floor Unit C so the personnel would have remained unchanged there. The complainant states that notwithstanding the fact this reason was never advanced to the complainant prior to the hearing, both the complainant and Mr. B had many years of experience and were already highly skilled. In addition, Mr. B was almost 60 years of age and it is the complainant’s evidence that he would not have been suited to the physical demands required of a psychiatric nurse on the Ground floor which dealt with emergency cases. Six months later, in January 2011, Mr. B was rostered back on the First Floor and the complainant was rostered back on the Ground Floor. The complainant submits that he was moved in order to deprive him of a promotional opportunity. He would have been the person with the longest period of service on the male ward on the Ground Floor - Thursday pass in terms of eligibility for the Acting Post of Clinical Nurse Manager 2 but for the fact that he was moved to the First Floor, without request or explanation. He was moved to the First Floor for the minimum period of six months thereby depriving him of the seniority he would have had on the Ground Floor-Thursday pass. He was subsequently rostered back on the Ground Floor for the Monday pass where an Acting CNM2 had already been in place for a significant period of time.

2.9 The complainant submits that but for the unexplained move he would have fully expected to be promoted to the Acting-up role in a long term capacity (as had been the case with many other employees appointed to Acting-up positions). It was custom and practice of the respondent to appoint the most senior person in terms of service within a particular ward, on a particular rotation (in this case male ward, Ground Floor, Unit C, Thursday pass) to a vacant “Acting- Up” position. The complainant asserts that the only plausible reason for him being moved to the First Floor was to deprive him of this promotional opportunity and pave the way for a white comparator to be appointed.

2.10 The complainant states that the respondent has made an assertion that Mr. P was the most senior person on the male ward, Ground Floor, Unit C. The complainant highlights that the respondent has failed to produce any documentary evidence in support of this assertion. The complainant submits that he would be best placed to assess his level of seniority on a particular ward rotation as against any other employee and due regard should be given to the fact that he, as an employee, does not have the authority or the records available to him that the respondent has at its disposal. The complainant maintains that Mr. P commenced work on the Ground Floor Unit C some months after the complainant and therefore had less service on the ward vis a vis the complainant. The complainant submits that he was qualified for a far longer period of time than Mr. P, Mr. O’ K or Mr. O’ C and would have been the most senior person on the ward. He submits that he was discriminated in relation to access to promotion on grounds of his race. The complainant submits that he has demonstrated a prima facie case of discriminatory treatment on race grounds and the respondent has failed to rebut that inference. The complainant states that there has been no cogent evidence put forward from the respondent to shift the burden of proof. In this regard, he cites the case of Fagan v The Revenue Commissioners DEC-E-2008-004 where (i) no minutes or formal records were maintained (ii) the basis on which candidates were deemed suitable/unsuitable had not been reduced to writing and (iii) a lack of documentary evidence to demonstrate that the complainant’s failure to be appointed to the acting up post was connected to factors unconnected with the complainant’s age.

3. Summary of Respondent’s case

3.1 The respondent states that the complainant was appointed to the post of registered psychiatric nurse with effect from 6 August 2002 and worked in Location A until 30 April 2005. The complainant applied for and was granted a leave of absence/career break from his post of psychiatric nurse, based in Location A from 1 May 2005 until 11 October 2006 for domestic purposes. Subsequently, the complainant applied for a transfer from his post as registered psychiatric nurse in Location A to a similar post in Location B. This request was reviewed and approved by management in line with service needs and available resources and the complainant was rostered in Psychiatric Unit C in the respondent organisation with effect from December 2006. The respondent states that the complainant continues to be employed as a full-time permanent psychiatric nurse at Unit C. The complainant was absent from work on sick leave which commenced on 30 September 2010.

3.2 The respondent submits that an integral part of the role of nurse management is to continuously monitor and adjust staffing levels, to include the skill-mix reflective of service needs and activity within the respondent organisation. The respondent asserts that in the management of resources available, clinical risk is an ongoing management challenge for Clinical, Service and Line/Operational managers in the delivery of services for patients and clients. The focus of decision making by managers is to ensure maintenance of front-line services and where possible minimising the impact on patients and clients. The respondent states that the staffing requirements are co-ordinated centrally by nurse management to address roster requirements on a day to day basis to ensure a seamless delivery of patient focused 24 hour nursing service. The responsibility for managing resources includes redeploying appropriate resources based on skill-mix and service requirements. The respondent submits that rostering arrangements at unit level depend on a multiple number of factors including (i) nature/type of service (ii) continuity of service for the clients/patients availing of the service (iii) available resources (iv) skill mix in the context of multi-disciplinary team who provide the service and (v) consideration of individual staff requests for shift patterns in relation to family commitments and/or work life balance.

3.3 The respondent states that the central staffing system in relation to in-patient services is operated on a six monthly basis which involves staff who were previously rostered for duty at the start of the week i.e. Monday/Tuesday/Wednesday now being rostered for end of pass i.e. Thursday/Friday/Saturday. The change of pass is a long established practice in the Mental Health Services. The respondent states that on 4 July 2010 a number of staff including the complainant were rostered as per the change of pass and assigned to different units than which they had been rostered to work in the previous six months. This decision was made by nurse management in order to address service needs within the units. The respondent submits that the complainant was one of nine staff members who were re-assigned within the units in July 2010. The respondent states that in normal circumstances, in the event that a staff member wishes to raise an issue including staff rotation/rostering arrangements, the employee would do so with their direct line manager or via the HSE grievance procedures. The respondent contends that this was the appropriate mechanism available to the complainant but he did not pursue same.

3.4 The respondent submits that there is a service requirement in terms of governance, clinical risk, safe service delivery which is reflected in the nurse management structure as follows;

· Director of Nursing

· Assistant Director of Nursing

· Night Superintendant

· Clinical Nurse Manager 3

· Clinical Nurse Manager 2

· Clinical Nurse Specialist

· Clinical Nurse Manager 1

· Registered Psychiatric Nurse

The respondent contends that a CNM2 post in Unit C on the Ground floor became vacant due to associated changes within a number of nurse management interlinked grades. As an interim measure pending the approval for the filling of the CNM2 post on a permanent basis, an Acting-up arrangement was put in place to address service needs within the respondent organisation. Such Acting-up posts would be filled by way of most senior and suitable staff within the ward/unit. The respondent states that this is consistent with the custom and practice in place for such short-term Acting-up arrangements. The respondent contends that the seniority profile of staff is subject to change depending on the resultant impact of the internal staff rotational mechanism.

3.5 The respondent submits that the filling of the post in question was also reviewed in the context of the employment moratorium to include the potential for reassignment, redeployment within existing resources. While approval for filling the CNM2 post on a permanent basis had been sought, approval was granted for the filling of the CNM2 post on an Acting-up basis. The respondent contends that the CNM2 post was filled by the most senior/suitable staff member, Mr. O’ K for a period not in excess of three months. The respondent maintains that the complainant made an assumption that he would have met the criteria i.e. most senior/suitable had he remained in the ward and next in line for consideration should a promotional opportunity arise. However, the respondent states this is not the case as it is clear that the seniority profile of staff in any particular ward varies from time to time depending on staffing changes for example central staffing system / change of pass. The respondent refutes the complainant’s allegation that he was discriminated against on grounds of race.

3.6 The respondent submits that it is the level of seniority within the overall unit/area as opposed to a specific ward which determines seniority regarding Acting-up positions. In this regard, the respondent submits that in terms of seniority, candidates were placed as follows;

1st - Mr. P (commenced with the respondent in October 2004)

2nd - Mr. O’ K (commenced in June 2005)

3rd - Mr. B (commenced July 2005) (had complainant remained on Ground Floor, he would be placed 3rd on seniority list)

4th - Complainant (commenced in October 2006)

The respondent states that the complainant filed his complaint on 14 December 2010 and that whilst he is perfectly entitled to expand on same, the specifics of the complaint must relate to the alleged discrimination prior to that date. In the EE1 form, the complainant highlights that the last date of discrimination occurred on 4 July 2010. The respondent submits that while the complainant has sought to adduce a complaint which references the appointment of Mr. O’ C to the long-term Acting CNM2 position. Mr. O’C’s appointment to the position did not occur until sometime after the filing of the complaint on 14 December 2010 and he cannot therefore be an appropriate comparator. In relation to the Acting-up for the three month period which was given to Mr. O’K, the respondent states that it has clearly set out that its position was that Mr. O’K had more experience on the ward. The respondent states that no evidence has been provided that there is discrimination and no comparator has been highlighted. The respondent argues that the complainant has raised issues which could be classified as disputes or disagreements to be dealt with under the Grievance Policy of the HSE. The respondent argues that the complainant is bound to progress these issues under the Grievance Policy on foot of his terms and conditions of employment. The respondent maintains that many of the issues which have been raised by the complainant are entitlement issues which are not related to issues of race but are issues of seniority.

3.7 The respondent states that the complainant goes on to complain that he was not appointed to the long-term Acting-up position in 2011, however, the respondent submits that he could not have filled same as he was not available for duty as he was on sick leave at this time. The respondent submits that the complainant argues that this represents further discriminatory treatment but in fact the complainant was not available to be rostered for work until a period of almost six months after he lodged his complaint of discrimination. The respondent submits that while the complainant argued he made a complaint to Mr. K, Assistant Director of Nursing, Mr. K stated in oral testimony at the hearing that no complaint was made directly to him in relation to it. The respondent states that Mr. K is the relevant person to whom such a complaint can be made and he is agreeable to provide sworn testimony to the effect that no complaint was made directly to him. The respondent refutes the complainant’s allegation of discrimination on grounds of his race and maintains that it relates to industrial relations as opposed to an equality issue.

4. Conclusions of Equality Officer

4.1.I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court[1], whilst examining the circumstances in which the probative burden of proof operates, held as follows –

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

4.2 The complainant is of Maurition nationality and is non-white. He is alleging that he was discriminated against on grounds of race in relation to access to promotion to the position of Acting Clinical Nurse Manager 2 (A/CNM2) with the respondent. The complainant states that Mr. M who was acting Clinical Nurse Manager 2 (A/CNM2) was due to be promoted to Acting Assistant Director of Nursing and he would have been the next most senior person and would have been eligible had he not been moved. Having examined all the submissions and testimony taken on the day of the hearing, I find that on the basis of the evidence and the fact the complainant was moved immediately prior to a promotional post becoming available, he has established facts of sufficient significance to raise a presumption of discrimination. I note that while the respondent argues that Mr. P was the most senior, Mr. O’K was given the temporary acting up on the basis that the role and responsibilities of the acting up post would support his studies as part of a diploma he was undertaking in UCC. The respondent has stated that there was no complaint or grievance from Mr. P on this matter. The complainant stated that he raised his objections regarding the proposed relocation with his union representative but the respondent persisted with the relocation. Having taken the testimony of witnesses on the day of the hearing, on balance, I prefer the testimony of the complainant. He stated he was the longest serving on the ward and while he was not given a reason at the time for his transfer to the First Floor, it came up at the hearing that he was transferred on the basis of “skills mix” as was Mr. B who transferred into the complainant’s role. Having examined this argument, taking into consideration the long service of both employees and Mr. B was coming up on 60 at the time, I find it lacking in credibility the notion put forward of transfers in relation to the complainant and Mr. B on the basis of a skills-mix. I also question if this was the reason for the transfers why both employees could not have been informed this at that juncture. It just does not ring through for me having heard all the evidence. Also I note that following the six month period, both the complainant and Mr. B were moved back to their original roles.

4.3 I found the testimony of some of the respondent’s witnesses contradictory and it was at odds with arguments made in their written submissions. While in their submissions and on the day of the hearing, the respondent stated that Mr. O’ K only acted up in the post for a three month period. In a later submission, it stated that Mr. O’ K held the acting up post until Mr. O’ C was assigned to the post of Acting CNM2 with effect from 6 January 2011. I note that while custom and practice was that the longest serving on the ward/unit would get the acting up post, in this case, the respondent states that they gave it to an employee who was undertaking a course in UCC. Therefore, the respondent deviated from the normal procedure. I note the testimony of Mr. K, president of the Psychiatric Nurses Association on the day of the hearing where he stated that as an organisation representing nursing staff, they have concerns regarding the respondent promoting persons to acting up posts and other positions on a “nod and a wink basis” and deviating from the normal custom and practice including in the present case of the complainant. I am cognisant of the case Massinde Ntoko v Citibank [2004] 15 ELR116 where the Labour Court stated that “a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof”. I also considered the Equality Officer decision in Jennifer Mey v St. James Hospital DEC-E2007-016 where the complainant was successful in her case where she argued that she was discriminated against on grounds of her race as she could demonstrate that she was better qualified and had more experience than the successful candidate. I am also cognisant of the case in Fagan v Revenue Commissioners DEC-E-2008-004 where the Equality officer found in favour of the complainant due to the lack of cogent evidence from the respondent and a lack of documentary evidence to substantiate its case.

4.4 On hearing the testimony of various individuals on the day of the hearing, on balance, I prefer the testimony of the complainant as I found him to be clear in his evidence and more convincing. On that basis, I find that the complainant has demonstrated a prima facie case of discriminatory treatment on grounds of his race in relation to the Acting/Clinical Nurse Manager 2 which was given to Mr. O’ K in July 2010 and the respondent has failed to rebut that inference. I note that the complainant was absent on sick leave which commenced on 30 September 2010. While the complainant has stated that the last date of discrimination was 4 July 2010, on the day of the hearing, the complainant argued that the discrimination was ongoing and that he was also discriminated against on grounds of race in relation to the appointment of Mr. O’C who was assigned the post of Acting CNM2 with effect from 6 January 2011. However, given that the complainant was on sick leave at this time, I find that he would have not been in a position to be appointed to the Acting up in January 2011. In addition, it would be incumbent on the complainant to lodge a complaint following this appointment which I note he did not do. For those reasons, I find that I have no jurisdiction to deal with the allegation of discrimination on grounds in relation to the acting up CNM2 appointment in January 2011.

5. Decision of the Equality Officer

5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that

(i) the complainant was discriminated against by the respondent in relation to promotion to Acting-up CNM2 in July 2010 on grounds of race pursuant to section 6(2) of the Acts and contrary to section 8(1) of the Acts.

In accordance with my powers under section 82 of the Employment Equality Acts, 1998 – 2011, I hereby order that the respondent pay the complainant €7,500 by way of compensation for the loss of earnings suffered by him as a result of the discriminatory treatment. I also award €20,000 in compensation to the complainant for the effects and ramifications of the discriminatory treatment. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code. I also order that the respondent reviews its policies in the area of Acting-ups and promotions to ensure transparency and to ensure that its procedures have particular regard to employees protected by the Employment Equality Acts.

________________

Valerie Murtagh

Adjudication Officer

9 February, 2016

Footnotes

[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.