Complainant

Respondent

Parties

Odette Kabalisa Reidy

Health Service Executive

Representatives

None

Mason Hayes & Curran Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00007941-001

2nd November 2016

The complainant asserts that the respondent discriminated against her on grounds of gender and race. The most recent date of discrimination was the 4th October 2016. The respondent denies the claim.

In the complaint form, the complainant outlined that her work conditions changed substantially following her move to the respondent human trafficking team. This role was a nationwide role, while her previous role was in a local service. The complainant attended the Labour Relations Commission regarding the appropriate grading for this role and it recommended that a job evaluation take place. The respondent informed the complainant that the Project Worker pay scale is obsolete and her job title is, therefore, not recognised. The complainant outlines that to be paid in accordance with an obsolete grade is part of the respondent’s discriminatory practices and unfair treatment.

The complainant submitted a detailed statement in support of her complaint. She outlines that on taking up the role in the human trafficking team, she required a new job description and matching job title and grading. The fact that the “Project Worker” grade no longer exists impacts on her as she did not receive changes applied to other employees. The complainant raises her heavy workload where she managed all referrals. She also represented the service nationally and internationally. She was later diagnosed with high blood pressure caused by work-related stress. She took 10 weeks’ sick leave, for which the respondent hired three agency staff to do her role. She commented that she had sought additional staff for four years.

The complainant takes issue with her treatment at the hands of one manager, who overlooked her opinions and prevented the complainant expressing herself. The respondent also ignored a request to give her a new job title and grade under the consolidated pay scale. Between 2001 and 2009, the complainant was one of five project workers in the social work team dealing with unaccompanied minor asylum seekers. They sought equal pay and conditions with social workers. The others subsequently resigned because of bullying.

The complainant refers to the traumatic experiences of the client group served by the human trafficking team. They often do not speak English and have poor literacy and communication skills. They present with complex needs and required a high level and holistic intervention. The complainant refers to the General Manager leaving in 2012 and a colleague being out on long-term sick leave, leaving the complainant to manage all cases between 2012 and 2014. She raised her concerns about this with a named manager. She was unable to get clarification on her job title, job description and grade.

The complainant asserts that she was unable to participate in the 2015 Employee survey conducted by the respondent because the online portal would not accept her “Project Worker” grade. She used another title to make a submission. She refers to the Department’s correspondence, where it says it is inappropriate for an employee to remain on an obsolete grade. The respondent referred to the Haddington Road Agreement as why this could not be addressed. The complainant seeks that she be assigned a role and grade not below the senior counsellor grade.

In evidence, the complainant commenced with the respondent in November 2000 as a secretary. She applied for a project worker role in the social work team, dealing with children asylum seekers. In September 2009, the complainant was approached to join the anti-trafficking team. At the start, they had a team leader and two staff, dealing with some 25 cases. There were now five in the team.

The complainant said that she asked for a proper job description as there was no accurate description. The respondent had not complied with its own protocols and she was told she was doing the same job. Her current role held more responsibility as she carried out clients’ risk assessments. Social workers carried out this role in the unaccompanied asylum seekers team. The complainant now referred clients to services and was accountable for how they were treated. There was no issue with how she performed her role, which she did with a heavy work load.

The complainant referred to the respondent’s letter of the 9th April 2014 where it states that her role is set in stone. She commented that she was sent a draft job description in September 2012. They needed proper support because of the nature of the work. The respondent had not provided the basics, for example an updated contract. Her contract dated from 2006 and had not been updated.

The complainant outlined that she felt discriminated against as she was denied access to support services, for example additional staff. She had to do all the roles. She commented that everyone knew she was stressed. She referred to emails from 2012 where the respondent did not allow her to transfer. She was only provided supports in 2014 when she started writing to the Director General. The respondent needed to rectify the original mistakes it made. She had academic qualifications and experience in the area. She had obtained EU funding for the project. Her role was not graded and she was entitled to be graded as “Senior Counsellor”. She could not do something different as the “project worker” role does not exist.

The complainant said that she needed a proper grade as well as terms and conditions and a consolidated pay scale. She did not know how she went on a non-consolidated pay scale. In respect of her race complaint, the complaint said that she met HR representatives of the respondent in August 2014. They mentioned her role being redundant. She felt patronised and disrespected. They said that their hands were tied by Haddington Road. They suggested she transfer to another State agency, but this was not possible.

The complainant referred to a meeting of the 4th March 2015 regarding the possibility of merging teams, including the teams working on trafficking and prostitution. A named respondent manager shouted over the complainant to stop her talking. The complainant complained about this incident via her trade union. Nothing happened. There were four Irish women at the meeting and they could talk. She said that she was not able to talk.

The complainant outlined that she applied for a shorter working week but this was denied. She had been able to do so before, but this was denied in 2016. She said that this was because she had opposed the amalgamation of services.

The complainant contributed to training in anti-trafficking work between 2010 and 2014. In June 2015, a manager said that she could no longer play this high profile role. This happened because of her race and gender. She commented that she had bad experiences in the anti-trafficking team.

The complainant outlined that as redress, she was looking to be allocated a grade and that her role is reviewed. She emphasised that her role held responsibility. She required an apology from a named manager for taking away her dignity. She had been neglected for three years and deserved an apology. She had also taken ten weeks’ stress leave. It was time for the respondent to acknowledge that she had been let down. She referred to the letter from a respondent employee of the 24th October 2016 regarding project workers being non-aligned.

On the 1st September 2017, the complainant made additional submissions in support of her claim. She raises the meeting of the 4th March 2015 and she went on 10 weeks’ sick leave on the 11th March 2015. She had been neglected by the named line manager for three years. She refers to the email of the 15th September 2015 from this manager, which she perceived as race discrimination. On the 23rd July 2014, the line manager suggested she transfer to a state agency. On the 3rd August 2015, the line manager and the Employee Relations Manager told her that her role could be redundant and that Haddington Road prevented her re-grading. The complainant says that she had great memories of working for the respondent, except for the three years working with this line manager. She states that she is the only project worker on the anti-trafficking team. She asks that she be placed on the Senior Counsellor grade, on the 8th point (backdated to 2010) and that she receive compensation and an apology.

In her email of the 9th November 2015, the complainant emails a junior manager regarding her silence and humiliation and that better management should promote inclusive participation. This email was sent at the time of the amalgamation of the anti-trafficking team with other services. In her letter of the 26th September 2014 to the National Director, the complainant refers to managers whose titles had changed despite the Haddington Road agreement. She says that after 2012, she was working on some 120 cases, spread over 16 counties. In the letter of the 28th July 2014, the complainant refers to her potential transfer to the state agency and that she is to be placed on probation until mid-2015. She comments on the new titles given to managers and refers to the Equality Act. In her letter of the 31st July 2014, the complainant says she has no objection to the transfer but questions the reason for the transfer. The complainant includes correspondence of 7th October 2015 regarding her application for a shorter working year.

In submissions, the respondent asserts that the complainant is not seeking to be aligned with a consolidated pay scale; she is seeking to be re-graded. It submits that the complainant is at the maximum point of her pay scale and there is no long service increment. It states that the respondent HSE Job Evaluation Scheme does not cover project worker roles. It states that the respondent is not able to carry out a job evaluation, as recommended by the Rights Commissioner.

The respondent acknowledged that this was a demanding job. It referred to the public sector moratorium imposing constraints and the anti-trafficking team were under-resourced at the time. The team has since been adequately resourced. There were now 4.5 WTE’s in the team as well as two other posts in women’s health. It submitted that the complainant’s role was outside the scope of regularisation. The complainant was on an unconsolidated pay scale. A Job Evaluation Scheme had not been extended beyond Grade III to VI roles. The respondent submitted that the complainant’s salary was above these roles and her position was not analogous. The respondent outlined that the payroll code stated by the complainant was an administrative function. It submitted that an employee could not simply be moved from a non-consolidated scale to a consolidated scale. This could occur by transfer or promotion, or following a job evaluation. While the code for “project worker” may have been abolished within the respondent, the title had not and there were 22 other project workers in this area.

In a supplemental submission made on the 27th October 2017, the respondent states that the only issue within time is the refusal to accommodate the complainant with a shorter working year. It states that other staff members were also refused this application. It states that the other issues are made outside of the time limit provided by the Employment Equality Act.

The complainant is a longstanding employee of the respondent. She performs an important role on a national team working with victims of human trafficking. The respondent accepts that the team was significantly under-resourced, leading to a heavy workload being placed on the complainant. She went to “the top” on this issue, emailing the Director General on the 10th March 2014. The respondent states that the team is now adequately resourced to carry out its important work.

The complainant raises her grading and pay scale as the “Project Worker” grade is now obsolete. She previously referred a dispute pursuant to the Industrial Relations Act. On the 21st August 2015, a Rights Commissioner recommended that the role and function of the complainant be reviewed at the first available opportunity. The respondent did not appeal this recommendation, but has not implemented it, nor said when the evaluation might happen. The complainant referred her grading to the parent Department, and in their reply of the 27th May 2015, the Department is clear that “it is not appropriate that anyone would be on that grade”. Despite the clear terms of the Department’s statement, the complainant remains on the grade with no indication from the respondent when anything might change.

This is a claim of discrimination on grounds of gender and race. The complainant is a woman and Black Irish. The complainant said she had cried for help for several years; that she was the only black person and left alone and that her voice could not be heard. During the adjudication, I set out the areas in which the complainant alluded to discrimination. They were:

·         The meeting with a named line manager of the 4th March 2015 where it was alleged that this manager spoke over the complainant;

·         The incident with two line managers at the training event in June 2015;

·         The incident arising from a 2012 transfer, also involving a named line manager;

·         The complainant no longer providing training and her reduced profile;

·         The line manager created an atmosphere of discrimination;

·         The meeting held in August 2014 with this line manager and a HR manager regarding her re-grading;

·         The issue of the complainant’s possible transfer to a new agency dealing with children.

I invited the complainant to make any additional submissions she wished after the adjudication. The complainant made submissions on the 1st September 2017, enclosing items of correspondence. The respondent submitted a reply on the 27th October 2017.

This is a complaint of discrimination made pursuant to the Employment Equality Acts. In Valpeters v Melbury Developments Ltd [2010] E.L.R. 64, the Labour Court set out the burden of proof in claims of discrimination:

“Section 85A of the Act 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.” 

It is obvious that the complainant has a longstanding grievance with her terms and conditions of employment. The complainant and her colleagues on the unaccompanied asylum seeker team made representations regarding their grading as project workers. This was a collective issue. The complainant had further grievances following her transfer to the anti-trafficking team. As outlined above, the respondent acknowledged that the team was under-resourced between 2012 and 2014. The complainant remains a “Project Worker” and asks, as redress, that she be designated as a Senior Counsellor in the Psychologists & Counsellors Grade Group or the Senior Social Work Practitioner in the Social Workers Grade Group. The question is whether there has been discrimination on grounds of gender or race.

The first step in this assessment is whether the complainant has established facts of such significance that raise a presumption of discrimination. There may be cases where the degree of unfairness faced by an employee is sufficient to raise the presumption of discrimination.

In assessing the evidence and submissions in this case, I note the many representations made by the complainant to the respondent. They include emails of the 20th August 2013, 10th March 2014 (to the respondent Director General), 29th April 2014, 1st October 2014, 27th May 2015 (to the Department) as well as the undated 2015 submission relating to the merger. I also note the account of the Rights Commissioner of the adjudication of the 13th July 2015. The first reference to equality is made in the complainant’s letter of the 28th July 2014. This refers to the titles of managers changing while hers did not. The complainant makes a broad reference to equality. A second reference to equality is in the complainant’s email of the 28th May 2015, the day after the Department’s email. The complainant refers to the respondent’s equality policy. She questions why she is not recognised in the respondent’s pay policy after over 10 years and why is she treated differently to other employees.

The respondent referred to a job evaluation scheme for clerical and administrative roles between grades III and VI. This scheme has since re-opened. The respondent HR Circular 011/2017 extended the Job Evaluation Scheme to support grades. Job evaluations and regularisation of respondent employees are subject of many referrals to the Workplace Relations Commission. Given the impact of the public sector embargo and the size and complexity of the respondent, this is likely to be an ongoing issue.

Having reviewed the evidence and submissions of the parties, it is clear that the complainant has a significant industrial relations grievance. There is, however, no fact of significance that raises an inference of discrimination. This is clear from the complainant’s own correspondence, where she makes no reference to discrimination. The two references made to equality are generalised statements with no fact alluded to that could raise an inference of discrimination. This includes significant correspondence with line managers, the Director General and the Department. She sets out the issues in clear terms and this leads the respondent to provide more resources to the anti-trafficking team. It is difficult to interpret conversations and meetings between 2012 and 2015 as discriminatory when the complainant did not say they were discriminatory in contemporaneous correspondence. For these reasons, I do not find in favour of the complaint of discrimination made pursuant to the Employment Equality Act. I make this finding notwithstanding the significant underlying industrial relations issue.

CA-00007941-001

For the reasons set out above, I do not find in favour of the complaint made pursuant to the Employment Equality Act and deem it to be not well founded.

Employment Equality Act

Non-implementation of an Industrial Relations recommendation

Prima facie case of discrimination