Complainant

Respondent

Anonymised Parties

Senior Staff Nurse

Nursing Home

Representatives

David Powderly Solicitors. Mr Padraic O’Neill B.L

O'Mara Geraghty McCourt

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017845-001

09/03/2018

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

CA-00017845-002

09/03/2018

The complainant commenced employment with the respondent on 22/6/2016 as a staff nurse. She worked 38 hours a week. She was paid an hourly rate of €22.

The respondent failed to inform her of two promotional vacancies in 2017 for which she was qualified.

In addition, the respondent paid her less than more junior nurses.

The respondent failed to provide her with training.

The complainant contends that all three of these facts amount to discrimination on the gender and family status ground.

The last act of discrimination occurred on 27/2/2018.

She submitted her complaint to the WRC on 9/3/2018

CA-00017845-001

The complainant has worked as a staff nurse with the respondent since 22/6/2016.

She submits that the failure to offer her the opportunity to compete for a promotional post and the denial of training opportunities constitutes discrimination on gender and family status grounds.

Failure to consider complainant for promotional posts.

A vacancy arose for a Clinical Nurse Manager’s (CNM) position with the respondent in June 2017. The complainant was on maternity leave at the time and was not advised of the vacancy. Again, at some date between the 21 September 2017 and 22 October 2017 a vacancy arose for CNM position and the complainant was not advised of the existence of the vacancy. At the time the complainant was on annual leave. The complainant was eminently qualified for the position and has a level 6 nursing qualification. She had previously held a CNM position for 1.5 years in another institution. At the time the complainant was on maternity leave. The position was filled by a male nurse who worked at a grade below her and alongside her when she was a CNM in a previous institution. Her solicitor sought information concerning the advertisements and selection process used to appoint Mr J in October 2017. This was not provided.

On cross examination it was established that there are 15 nursing staff, 3 CNM’s and 11 staff nurses.

A further CNM vacancy arose in January 2018. The appointment was conducted via an open competition. The complainant applied for this post.

Training Opportunities.

The complainant advises that she was denied training. She accepts that she received mandatory safeguarding training but was denied training in the non-mandatory area. The complainant has not been provided with phlebotomy training and asked for same. The complainant tried to source the policy on training opportunities. She was not given same.

Respondent’s response to a complaint about her.

The complainant refers to a complaint made about her by Mr J. She attempted to get relevant documents re same. They were not provided to her despite requests to the respondent from her solicitor. She identifies this as less favourable treatment on the gender and family status ground.

CA-00017845-002

Pay.

The complainant states that lesser qualified or more junior nurses are earning more than her. The complainant advises that fellow nurse Ms. S told her she was earning €25 per hour and Mr. C told her he was earning €22.50 or €23 an hour.

The complainant has requested information from the respondent on pay rates for other staff and has been denied same.

She submits that the above is evidence of discrimination on the gender and family status grounds.

Legal Arguments in respect of CA-00017845-001 and CA-00017845-002.

The fact that the complainant was not made aware of the vacancy demonstrated not only indirect discrimination but disregard for the concept of discrimination. The complainant cites the decision St james Hospital V Eng EDA 023 where the Labour Court acknowledged that while there may not have been an intent to discriminate, a level of bona fides is not a defence for discrimination.

In Nevens v Portroe Stevedores (2005) 16 E.L.R 282 the Labour Court recognised that while intention to discriminate might not exist, subconscious bias, if existing, is unlawful and states

“Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

Burden of Proof.

The complainant states that the fact that the respondent repeatedly denied her the opportunity to compete for promotional posts is sufficient to raise an inference of discrimination as per section 85A of the Acts. It is not a defence to say the complainant was not contactable. The onus now moves to the respondent to rebut the inference.

The complainant relies on the decision of Halligan v Moy Valley Resources DEC-2008-025 which states that for the burden of proof to shift to the respondent, the complainant must establish that

she is covered by the protected ground,

establish the specific treatment has allegedly taken place,

the treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

The complainant submits that she meets the above criteria. The treatment of her was less favourable particularly in relation to the male nurse promoted, but yet of a lower grade than her. This is sufficient to raise an inference of discrimination.

The complainant wrote to the respondent on the 27 March, 11 April, and 20 June 2018 seeking answers concerning interview policy and procedure, notification of vacancies and advertisements. The respondent has failed to provide same.

She was discriminated against directly and indirectly on gender and family status grounds.

CA-00017845-001

The respondent denies any complaint of discrimination.

Alleged discrimination on gender and family status grounds.

The respondent employed the complainant knowing that she was 11 weeks pregnant at the time.

The complainant worked without issue or incident prior to her maternity leave which commenced on 15/12/16. The complainant returned from maternity leave followed by unpaid maternity leave on 3 July 2017.

The complainant was on sick leave followed by annual leave up until the 21 October.

Failure to promote the complainant.

The complainant wrongly asserts that a promotional appointment occurred in June 2017 and that she was not notified of same. The appointment occurred in 2016. The respondent mistakenly had the promoted nurse Ms. SJ down on the roster as a staff nurse up until 2017. There was a failure to change her title on the roster, but the documents submitted to HIQUA demonstrate that Ms. SJ was promoted in 2016 around the time that the complainant commenced employment.

Regarding the appointment to a CNM position, made between the 21 September and the 22 October, the complainant was on sick leave, followed by annual leave. The respondent denies that the failure to notify her was discriminatory in nature and related to her gender or family status.

The respondent set out the context for this appointment. A HICQUA investigation took place on the 14 September. They requested an action plan from the respondent which would see changes in governance and managements systems. The respondent put forward an action plan on the 21 September which entailed the replacement of the then person in charge whose experience was deemed to be insufficient by HIQUA. She was replaced by a CNM which generated a vacancy.

The HIQUA investigation also highlighted an issue which required input from the complainant. The respondent tried to contact the complainant but could not in relation to that matter. Complainant preferred handwritten letters to email. The respondent was not aware of complainant’s email.

The complainant’s declared disinterest in the CNM position due to having had a baby was recorded in a file note dated the 17/11/18 by Ms B, the registered provider.

On cross examination as to why the successful appointee secured the job, the respondent advised that he was there and available to take up the job. Irrespective of her unavailability, the successful appointee was the best fit for the job. The respondent appointed a suitably qualified male to the post.

On 17 January 2018, the respondent advised the complainant of the existence of an upcoming Clinical Nurse Manager’s vacancy. The complainant applied for the post.

The respondent cannot say that HIQUA do not allow a temporary or acting up appointment

The respondent submits that the mere fact that the appointee is a male is not indicative of discrimination on gender grounds, nor is the fact that in a previous employment he had reported to her indicative of discrimination on either of the two grounds identified.

The respondent states that she could have done the job

Training.

The complainant alleges that she was discriminated against on age and gender grounds in relation to training. The training policy asks staff nurses to keep up to speed and to identify any deficits in either education or training to the PIC. The complainant was offered training and availed of same. She was treated no differently to any other staff nurse in the provision of training. In relation to Safeguarding Training which would approximate the Elder Abuse training identified by the complainant, these courses are organised through the umbrella organisation, and spaces are extremely limited. At the time of the complainant’s resignation only 2 staff nurses had been able to avail of this. The complainant received elder abuse training in August 2017 which is valid for 3 years. In addition, HIQUA deemed the respondent to be compliant in respect of safety training and elder abuse training for clients.

The Director of Nursing advised staff that phlebotomy training was part of the training plan for 2018. She asked interested staff to contact her. The complainant never requested phlebotomy training then or at her appraisal review. The two nurses who did apply for this training got it.

Her resignation letter makes no reference to discrimination on gender or family status grounds.

The respondent advises that even if the training was constantly denied to her – which it wasn’t, there is nothing to link this fact to family status or gender.

The respondent on cross examination advised that the acting up appointment for Person in Charge post was for 2 weeks.

Passage of a complaint.

A complaint submitted by Mr J, the appointed CNM, was dealt with and an informal conclusion was reached. The complainant was given a copy of the complaint and was invited to comment. She offered no comment. The complainant does not identify how this could be seen as evidence of discrimination on gender grounds.

CA-00017845-002

Pay claim.

The complainant sought a pay rise on 15 August 2017.She repeated this request on November 2017. The respondent met the complainant on 22 December 2017. She was advised that a pay rise could result from an appraisal. The appraisal was done on 18 January 2018. She scored’ good ‘. Absence and attendance required improvement. The respondent undertook to arrange elder abuse training

The complainant resigned on the 26 February 2018.

The respondent advises that pay rates are based on experience, qualifications, demonstrable skills, expectations expressed at interview, performance on the job and attendance. The PIC ultimately decides on a pay rise. The complainant made no formal complaint concerning her pay . A grievance procedure is in place for such issues.

The respondent advises that the complainant identified her expected salary as €22 at interview when the respondent had knowledge of her pregnancy.

Staff pay

           Commencement date         Gender       Family status                             Pay.

A         Spring 2016                       F                   Married with children           Starting pay> €23 per

                                                                                                                                        hour. Unchanged in

                                                                                                                                       Feb 2018.

B         Sept 2017                             M                 Has children                             €23 starting salary.  

                                                                                                                                         Unchanged.

C         After June 2016                M                    Has children                               €23

D         August 16                            M                 Has family                                  €23

E         Sept 2017                             M                 Has children                               €22

F        Sept 2017                             F                   No children                                €19.50

The comparators earning more than the complainant have the same family status as the complainant and so there in no basis for a complaint on family status grounds. Pay is based on the stated criteria. The complainant received her desired rate. She was advised that a performance appraisal could have the potential to yield an increase.

The Law

The respondent submits that the complainant has made assertions unsupported by evidence. The respondent maintains that she has failed to raise an inference of discrimination. Without prejudice to their position that the complainant has failed to raise an inference of discrimination, the respondent maintains that they have rebutted the assumption of discrimination.  

The burden of proof cannot therefore transfer to the respondent and the complaint must fail

CA-00017845-001.

The matter for adjudication is whether or not the respondent discriminated against the complainant, and contrary to Section 6 (1) of the Employment Equality Act, 1998. The claimant asserts that she was treated less favourably in terms of her conditions of employment, and contrary to section 6 (2) (a) and (c) of the Act which prohibits discriminatory treatment on the grounds that one has family status and the other does not and one is a woman and the other is a man.

Alleged Acts of discrimination.

Promotional posts

The failure to notify the complainant in June 2017 of a vacant CNM position. I accept the respondent’s documentary evidence proves that this appointment was made in 2016 around the time the complainant commenced her employment.

The failure to notify the complainant in October 2017 of the vacant CNM position.

Burden of Proof.

The Labour Court in O’Higgins v UCD, EDA 131, reflected previous decisions in setting out the elements of a prima facie case of discrimination.

“It is for the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination.

If the complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.

It is not necessary to establish that the conclusion of discrimination is the only, or the most likely, explanation, which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts.……

The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.

A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.

Where a prima facie case of discrimination is made out and where the respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

The Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

There was total absence of transparency concerning the existence of this promotional post; there was no advertisement, no other candidates were interviewed. The complainant who was eligible for appointment and by the respondent’s own admission could have done the job was denied the opportunity to compete for the position.

I find that the decision to withhold information concerning the existence of this post from the complainant does raise an inference of discrimination. Discrimination is within the range of presumptions that can be properly drawn from the respondent’s decision to dispense with a competition for this post.

The onus therefore moves to the respondent to rebut the inference of discrimination.

The respondent maintains that they could not contact the complainant at another time about another matter. They state that her preferred method of communication is handwritten letters. But their own evidence is that there was no advertisement, no interview of any other candidates and that the successful candidate was brought into a room, a discussion was had with him and he was appointed. That is hardly indicative of a selection process which was interested in considering more than one candidate or in considering the complainant. I note that the respondent did advertise positions prior to and after this appointment.

I appreciate that there may been pressure from an oversight body to make appointments quickly but there was scope for an acting appointment and the respondent made one such acting up appointment to another more senior post. The oversight body’s report dated the 28 September, makes general recommendations about the need for an adequate skill mix and an enhanced management structure. They do not state that it has to be done before the 21 October which was the scheduled return date of the complainant. Even if that were the case, there was scope for an acting up appointment and for a transparent competitive process.

The Labour Court in O’Higgins v UCDEDA 131, stated that “where the onus of proof is on the respondent the question the Court must ask itself is whether it is more probable than not that the complainant's gender had nothing to do with her failure to be promoted. If, on the basis of all the evidence, the Court answers this question in the affirmative the respondent will have discharged its burden. If the Court cannot answer that question in the affirmative, or if it concludes the probabilities are equal, the respondent will not have discharged that onus and the complainant must succeed.” Miller v Minister for Pensions [1947] 2 All E.R. 372 at 374 applied.

The suitability and possible superiority of the successful candidate about which I can have no opinion is not what is at issue here. It is the outright absence of transparency. I find the respondent’s case that she could not be contacted, their evidence that they dispensed with a competitive process, their failure to make an acting appointment pending a permanent appointment is not of sufficient weight to rebut the presumption of discrimination. I note the complainant disputes that she ever expressed any disinterest in the position of CNM as alleged. I conclude that the probability that the complainant’s gender was at least equal to other factors in deciding not to advise her of and interview her for the position of CNM in October 2017.

Given that the respondent has failed to rebut the presumption of discrimination, I find that the complainant must succeed in her complaint that she was discriminated against on the basis of her gender.

As the successful appointee had a family, the complainant’s complaint that she was discriminated against on the grounds of family status, cannot succeed.

Training opportunities.

The evidence presented demonstrates that the complainant was given comparable training opportunities to other staff. The complainant cites the absence of training in phlebotomy as an indicator of discrimination on gender and family status grounds. I find on the evidence that she made no application for this training.   I note the respondent’s recorded commitment on 18 January 2018 to arrange Elder Abuse training for her. She resigned on the 28 February 2018.

Based on the written and oral evidence tendered, I find that the complainant has failed to discharge the burden of proof and the complaint in relation to this limb of complaint CA-00017845-001. Her claim must therefore fail.

CA-00017845-002

Alleged discriminatory pay rates.

Family status: The comparators chosen by the complainant have the same family status as the complainant. Her complaint cannot therefore succeed.

Gender: The uncontested evidence is that the complainant was paid less than one female, less than 3 males and paid the same as one male. The respondent advises that in relation to one male, B, earning €1 an hour more than the complainant, he was recruited in September 2017 when it was difficult to get staff.

The route to a pay increase is via an appraisal. This did not result in an increase for the complainant. I accept the objective justification advanced by the respondent that pay is based on a number of factors. I note that the complainant received the salary that she requested at interview. I note that the salary of 3 of the males is unchanged since their appointment. I note that Improvements were signposted to her at the appraisal on the 18 January 2018. She resigned one month later without raising any complaint about the salary. A grievance procedure exists for dealing with these complaints.

The complainant has failed to raise an inference of discrimination on either the gender or family status grounds in relation to this complaint.

Based on the written and oral evidence tendered, I find that the complainant has failed to discharge the burden of proof required in this complaint of discrimination on either the family status or gender ground, and the claim must therefore fail.

Anonymisation of parties.

I have decided to anonymise the parties as it is a small facility and other employees are identifiable due to the small number at a particular grade. It caters for elderly residents.

CA-00017845-001

I find that the respondent discriminated against the complainant on the grounds of gender.

I decide that the respondent should pay the complainant the sum of €7000.

CA-00017845-002

I find that the complainant has failed to discharge the burden of proof required in this complaint of discrimination on either the family status or gender ground, and the claim must therefore fail.

Appointment process; lack of transparency.