EDA1911

This is an appeal by Ms Denise O’Shea (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00008167, dated 21 June 2018) under the Employment Equality Act 1998 (‘the Act’). The Complainant’s Notice of Appeal - received by the Court on 20 July 2018 – indicated that she was alleging she had been discriminated against on both the gender and family status grounds. The Court heard the appeal in Portlaoise on 12 March 2019. At the outset of the hearing, the Complainant withdrew the family status element of her appeal. The Complainant gave evidence on her own behalf. The Court heard also from two witnesses from the Health Service Executive (‘the Respondent’): Ms Margaret Daly, Nurse Practice Development Coordinator, and Ms Rosalia Kavanagh, Acting Director of Nursing during the period encompassed by the within claim.

Factual Background

The Complainant began her employment with the Respondent on 1 June 2006 as a Psychiatric Staff Nurse at St. Fintan’s Hospital, Portlaoise. On 1 December 2015 she was promoted to the temporary position of Acting Community Mental Health Nurse attached to the Tullamore Community Mental Health Team at the Bannon Centre in Tullamore, County Offaly.

The Complainant told the Court that a letter from the Respondent dated 6 September 2016 was the most recent example of alleged discrimination on the gender ground she experienced prior to lodging her complaint with the Workplace Relations Commission on 17 February 2017. In order to understand the significance of the Respondent’s letter of 6 September 2016 it is necessary to place it in the context of a series of communications between the Complainant and representatives of the Respondent that occurred in the period March 2015 to September 2016.

In January 2015, the Complainant undertook a one-year postgraduate diploma in community mental health nursing at St. Angela’s College, Sligo. This course was funded by the Respondent. She successfully completed the course in December 2015. However, in April 2015, the Complainant sought approval from Ms Daly for funding to undertake a postgraduate diploma in cognitive behavioural therapy (‘CBT’) at University College Cork (‘UCC’) which was due to commence the following autumn. This request was refused. Nevertheless, the Complainant embarked on the first year of this course – which overlapped with her course in St. Angela’s for some three months – at her own expense.

In or about March 2016, the Complainant again approached Ms Daly with a view to seeking funding for the second year of her course in UCC. The Complainant’s evidence is that Ms Daly was positively disposed to her application and sent her the necessary application form and advised her to speak to Ms Kavanagh. The Complainant met with Ms Kavanagh in May 2016. The Complainant’s evidence is that she also found Ms Kavanagh to be supportive of her application at this stage. She told the Court that she informed Ms Kavanagh at this meeting that she was pregnant and due to commence maternity leave the following November. She also told Ms Kavanagh that, in advance of applying to UCC to commence the second year of her CBT course, she would need a letter of support from her employer, confirming that the Respondent would facilitate her with relevant work experience during the academic year. Ms Kavanagh wrote the Complainant subsequently on 31 May 2016 to advise her that the Respondent could not facilitate her with CBT-related work experience during her period of maternity leave. Thereafter, the Complainant requested a further meeting with Ms Kavanagh to discuss the Respondent’s position in this regard. That meeting took place on 29 August 2016. Ms Kavanagh restated the position as outlined in her earlier letter in relation to the Complainant’s request for work placement during her period of maternity leave. Ms Kavanagh also told the Complainant that the Respondent could not provide funding for the second year of the UCC course and could not furnish her with a letter to confirm that she would be facilitated with a work placement during her period of maternity leave.

The Complainant and Ms Kavanagh differ in their recollection of a number of aspects of the discussion that took place at the meetings on 16 May 2016 and 29 August 2016. Ms Kavanagh was very clear in her evidence that she referred on both occasions to what she (mistakenly) called the ‘five-year rule’ when asked by the Complainant about possible funding for the second year of the course in UCC. (Ms Kavanagh subsequently learned that the waiting period between periods of sponsorship had been reduced from five to three years.) The rule in question is set out in HSE Circular 020/2014 which provides for the sponsorship of nurses and midwives to undertake programmes of education and the conditions on which such programmes are sponsored by the Respondent. Circular 020/2014 provides at page 2 as follows: “Applicants must not have already received funding for a specialist course within the last thirty-six months (or less if specifically required by service need).” The Complainant told the Court that she had no recollection of Ms Kavanagh referring to the Circular at either meeting. In fact, she says she had never received nor been advised of that Circular. Furthermore, the Complainant states that Ms Kavanagh told her at the meeting in May that she would be in a position to fund the second year of her studies in UCC.

By letter dated 9 September 2016, Niall J Moran, Solicitors, instructed by the Complainant, wrote to Ms Kavanagh. The main focus of the solicitor’s letter appears to have been to try and secure a letter of support for the Complainant from the Respondent in order to ensure that she could participate in the second year of the UCC course which was to commence that very week. The letter also suggests that the Respondent’s unwillingness to support the Complainant’s academic progression was somehow related to her pregnancy: “In the absence of an explanation to the contrary, it is difficult to assert other than that this is as a direct result of her pregnancy”. Ms Kavanagh replied to the Complainant’s Solicitors by letter dated 29 September 2016. (The Complainant’s evidence is that this letter wasn’t received until the following November.) Ms Kavanagh states in her letter that the Complainant undertook the course in UCC while doing another course in Community Health Nursing which was approved and funded by the Respondent. Ms Kavanagh also denies that she undertook to secure funding for the Complainant’s second year of studies in UCC and states that she is precluded from approving funding for the UCC course by virtue of the “process in place for the allocation of funding approval for courses”. She also refers to the “obvious issues” that arise in relation to “any employee doing placements while on maternity leave”.

In response to questions from the Court, the Complainant confirmed that she had applied for funding from the Respondent in or about September 2014, prior to undertaking her course at St Angela’s. In making that application, the Complainant completed and submitted an application form headed “Form of undertaking in respect of payment of course fees.” A copy of this form was exhibited in the Complainant’s booklet of documents. That form references Circular 020/2014 three times. Nevertheless, the Complainant’s evidence to the Court was that she never consulted the Circular and had merely scanned the application form. Her position in this regard is somewhat at odds with answers she gave to subsequent questions from the Court when she confirmed that she knew in April 2015 when she first spoke to Ms Daly about the UCC course that she could not be funded for two courses simultaneously. The Complainant also told the Court that although she offered in May 2015, during her meeting with Ms Kavanagh, to self-fund year two of her UCC course, she was aware that a case could be made to obtain funding from the HSE for a second course if a service need could be identified to support such an application.

The Complainant’s written submission to the Court casts further doubt on the credibility of her evidence about her lack of awareness of Circular 020/2014. She states in that submission that Ms Daly sent her two forms on 5 May 2016: (i) HSE Application Process for Specialist Nursing Courses 2016; and (ii) HSE Sponsorship of Nursing/Midwifery Education Initiatives Circular 020/2014.

In her evidence to the Court, Ms Margaret Daly, confirmed that she had spoken with the Complainant on the telephone sometime between March and May 2015. Ms Daly, in her role as Nurse Practise Development Coordinator, was aware that the Complainant was then undertaking a course in St. Angela’s College. She recalls that the Complainant wanted to discuss the possibility of undertaking the CBT course in UCC, commencing in autumn 2015. Ms Daly says that she told the Complainant that it would not be a good idea to attempt to undertake two post-graduate courses simultaneously and that, in any event, funding would not be forthcoming for the second course because of Circular 020/2014. Ms Daly said that the Complainant telephoned her a second time to tell her that she was going to pursue the course in UCC.

Ms Daly told the Court that the Complainant telephoned her again in spring 2016 to say that she was progressing on the UCC course and intended to seek funding. Ms Daly’s evidence is that she told the Complainant that Circular 020/2014 still applied but that possibly a case could be established for funding on the basis of service needs. She advised the Complainant to discuss this with her line manager as local management would have to advance any such application which would then be subject to the approval by senior management.

Ms Rosalia Kavanagh also told the Court in her direct evidence that the Complainant, during their meeting in May 2016, had proposed making an application for funding for year two of her UCC course on the basis of service needs. She said that the Complainant had raised the issue of her pregnancy during this meeting and asked would it be a problem in the context of making an application for funding. Ms Kavanagh’s evidence is that she told the Complainant her pregnancy would not be a problem but that she (Ms Kavanagh) would have to check what the position was in relation to an employee completing work placements during a period of maternity leave. To this end, Ms Kavanagh sought advice from Mr William Toomes in Human Resources. She also contacted the Complainant’s line manager and discovered that the line manager had no knowledge of the Complainant undertaking the UCC course. Ms Kavanagh also contacted Ms Daly in relation to the application of Circular 020/2014. Ms Kavanagh explained to the Court that it was not within her gift to approve an application for funding on the basis of special needs. A business case for this would have to be made by local management and referred to the Mental Health Lead and the Nursing Midwifery Planning Development Unit. This process had not been completed by or on behalf of the Complainant.

Conclusions and Decision

The Court, having considered the parties’ written submissions and the evidence of the Complainant and of the witnesses for the Respondent, concludes that the Complainant was aware at all material times of the existence and the terms of Circular 020/2014. The Court finds that both Ms Daly and Ms Kavanagh were nothing but supportive of the Complainant’s efforts to advance her education and progress her career. Furthermore, the decision not to provide funding for year two of the UCC course was not in any way related to the Complainant’s pregnancy: it was made in circumstances where the Respondent was bound by the terms of Circular 020/2004. In general, no employee of the HSE was entitled to receive funding for a subsequent course until thirty-six months had elapsed after the end of an earlier funded course. The Complainant proposed availing herself of an exception within the Circular to that general rule which allows a person to secure funding for a second course without having to wait thirty-six months where a service need has been identified for the skills and/or qualification associated with the course in question. However, the evidence before the Court is that the Complainant did not in fact initiate that process with her line manager. The Court also finds that the decision not to support the Complainant’s progression to the second year of the course in autumn 2016 was informed by the fact that the Respondent, not unreasonably, could not undertake to provide her with the necessary work placements during her period of statutory maternity leave.

The Court finds, therefore, that the Complainant has failed to establish facts from which an inference of discrimination could be drawn. The appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
10 May 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.