FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : HEALTH SERVICE EXECUTIVE, MIDWEST UNIVERSITY HOSPITAL LIMERICK (REPRESENTED BY NIAMH MCGOWAN, B.L., INSTRUCTED BY COMYN KELLEHER TOBIN, SOLICITORS) - AND - MAURA FITZGERALD (REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Hall |
1. An appeal of an Adjudication Officer's Decision No. ADJ-0008073.
BACKGROUND:
2. The Respondent appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 2 May 2019. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by HSE Midwest University Hospital against the decision of an Adjudication Officer ADJ-00008073, CA-00011073-001 under the Employment Equality Acts 1998 – 2015 (the Acts). Ms Maura Fitzgerald claimed to have been indirectly discriminated against by her employer, HSE Midwest University Hospital, on the age ground contrary to section 6(2)(f) of the Acts, in relation to access to a promotion contrary to Section 8 of the Acts.
For ease of reference, in this determination, the parties are given the same designation as they had at first instance. Hence Ms Maura Fitzgerald will be referred to as “the Complainant” and HSE Midwest University Hospital will be referred to as “the Respondent”.
The Complainant applied for a competition for a position as Operational Director of Nursing (Band 1) at the Hospital in October 2016, she was denied eligibility due to new national eligibility criteria which required that she possess a post-graduate qualification at not less than Level 8 (QQ1) in Healthcare or Management related areas. The Complainant was 59 years at the relevant time.
The Complainant submitted her claim to the Workplace Relations Commission on 2ndMay 2017.
The Adjudication Officer found in favour of the Complainant, she awarded the Complainant €75,500 in compensation and ordered the Respondent to review its Promotion Policy to ensure that its procedures protect employees against discrimination under the Act.
Background
The Complainant is employed by the Respondent as Head of Nursing Integration & Development. She commenced employment at the Dooradoyle Hospital complex, Limerick in 1983. Within a year she was appointed through Public Local Appointments Competition to the position of Assistant Matron (now Assistant Director of Nursing). Between 1989 and 2014 she acted in senior nurse management posts, namely: -
- •Acting Deputy Matron (total 4 years, 1989-1993)
•Acting Deputy Matron (total 5 months 1995-1996)
•Deputy Director of Nursing (total 7 years, 1996-2003)
•Acting Director of Nursing (total 5½ years, 2003-2009)
•Deputy Director of Nursing (total 5 years, 2009-2014)
- •Have had experience in Nursing Management, and
•Have had satisfactory general nursing experience, and
•Possess the requisite knowledge and ability for the proper discharge of the duties of the office, and
•Have undertaken training in management appropriate to the post.
The Complainant met the eligibility criteria and applied for both posts.
Interviews were held but no successful candidate emerged.
In August 2016, the HSE National Director of Human Resources introduced new national eligibility criteria for appointment to the post of Director of Nursing (Band 1), which criteria required the applicant to be a registered general nurse and to: -
- •Have 10 years post registration nursing experience and 5 years nursing management experience at a minimum of CNM 2 level of which 3 must have been in an acute setting, and
•Possess a post graduate qualification at not less than level 8 (QQI) in health care or management related area, and
•Possess the requisite clinical, leadership, managerial and administrative knowledge and ability for the proper discharge of the office.
In October 2016, the post of Operational Director of Nursing (Band 1) was again advertised and the Complainant submitted her application form. She possessed a Management Diploma for Health Service Professionals awarded by the Institute of Public Administration (IPA) in 1991. However, the IPA confirmed to the NRS that the course at issue did not sit on the QQI framework and the comparable programme now offered by them is the undergraduate Diploma in Healthcare Management which is accredited by UCD and sits at Level 6 on the QQI framework.
By letter dated 16thNovember 2016, the NRS notified the Complainant that her application had failed as she did not possess a post graduate qualification at not less than Level 8 (QQI) in health care.
In addition to the above competition and as a result of the same eligibility criteria, the Complainant was deemed ineligible to apply for the post of Director of Nursing (Band 1) - Directorate advertised in Mid-January 2017.
Summary of the Complainant’s Case
Mr David Hughes, INMO, on behalf of the Complainant, submitted that the Complainant was discriminated against on the age grounds as she was put at a particular disadvantage as a result of the Respondent’s introduction of new national eligibility criteria in respect of appointment to the post of Director of Nursing (Band 1). This requirement denied the Complainant the opportunity to apply for and be considered for two advertised posts and ultimately to reach the grade of Director of Nursing (Band I).
He said that the Complainant had been at senior nurse manager level with the Respondent over the last 30 years, five and a half of which were at Director of Nursing level.While acting in the role of Director of Nursing from June 2003 to February 2009, the Complainant carried out all of the duties and responsibilities attached to the post, including managing 707.5 whole time equivalent nursing staff and 96 whole time equivalent health care assistant staff, developing nurse education, budgets, admission and discharge policy, waiting lists, absenteeism, industrial relations issues, nurse practice development policies and procedures, audits, quality improvement plans, risk management, working with multi-disciplinary teams and General Manager. service developments, preparation for HIQA, Nursing and Midwifery Board of Ireland (NMBI) and other external bodies site visits and internal and external auditors.
She is a highly qualified professional who following registration as a General Nurse in 1976 spent many years obtaining post registration qualifications in order to enhance her career opportunities. From April 1977 to April 1978 the Complainant undertook the approved post registered An Bord Altranais Education Programme which led to registration as a Registered Midwife. From December 1979 to June 1981 she undertook the approved post registration An Bord Altranais Education Programme which led to registration as a Registered Psychiatric Nurse. From July 1981 to January 1982 she undertook the approved post registration An Bord Altranais Education Programme which led to a Diploma in Accident & Emergency Nursing. She also holds a Management Diploma for Health Service Professionals which she was awarded by the IPA in the early 1990’s prior to the introduction of the QQI award system.
Mr Hughes suggested that it was open to the Respondent to recognise An Bord Altranais (now known as NMBI) approved education programmes which the Complainant undertook in midwifery and psychiatric nursing in the late seventies /early eighties as equivalent to the current standard set by NMBI for such programmes, namely Level 8 QQI but so far it has chosen not to do so.
He contended that the treatment complained of amounted to indirect discrimination on the grounds of age because the impugned provision, albeit a requirement of all candidates, disadvantages a larger number of older than younger candidates as fewer people of her age could comply with the requirement. At the relevant time, the Complainant was aged 59 years and fell within the age group 55-59 and the successful candidate fell within the age group 30-39.
In support of his contention, Mr Hughes cited statistics, taken from the Central Statistics Office “Table EA005” (Census Year 2016) presents a profile of people aged over 15 educated to a postgraduate diploma or degree level: -
Total population educated to postgraduate diploma or degree: 284,107
Age group - 30-34 - 45,584 - (16.03%)
Age group - 35-39 - 51,764 - (18.21%)
Age group - 55-59 - 17,985 - (6.33%)
Total population educated to honours bachelor degree/professional qualification or both: 331,293
Age group - 30-34 - 57,554 (17.37%)
Age group - 35-39 - 52,961 (15.98%)
Age group - 55-59 - 16,897 (5.10%)
He therefore, contended that it may be inferred that fewer persons of the Complainant’s age were able to satisfy the post graduate Level 8 (QQI) criterion imposed by the Respondent for the post of Director of Nursing (Band 1) in comparison to persons in the younger age groups.
In support of his argument, Mr Hughes cited the UK case ofHomer v Chief Constable of West Yorkshire Police[2012] UKSC 15, no statistical evidence was submitted by the complainant to support his claim of indirect discrimination. Nevertheless, the Supreme Court, overturning the decisions of the EAT and the Court of Appeal, ruled that the requirement that employees must hold a law degree in order to be placed in the highest grade amounted to indirect age discrimination against the complainant, as he did not have enough time to complete a degree before reaching retirement age, and this operated to his disadvantage. The Supreme Court made clear that the test for indirect discrimination using the wording ‘particular disadvantage’, as seen in the UK Employment Equality legislation, was:
- “Intended to do away with the need for statistical comparisons where no
statistics might exist. It was intended to do away with the complexities
involved in identifying those who could comply and those who could not and
how great the disparity had to be. Now all that is needed is a particular
disadvantage when compared with other people who do not show the
characteristic in question.”
He also cited the case ofStephen Games v University of KentUKEAT/0524/ 13/DA, which concerned the complainant’s application for a post as a lecturer at the University of Kent School of Architecture when he was aged 59. His application was turned down at short-listing stage because he did not have a PhD which was an essential requirement for the post. He produced statistics of the award of PhDs in the UK over the period 1970— 2010 which did not reveal the ages of the recipients. The Employment Tribunal dismissed his claim, among other reasons because it thought that there was no statistical evidence that as an older applicant he was particularly disadvantaged. On appeal, the Employment Appeals Tribunal held that the Employment Tribunal had erred in not taking into account the complainant’s own personal experiences and of others in his age group, and to decide whether this evidence, supported by the statistics, provided the required proof.
In the case ofInoue v NBK Designs Ltd[2003] 14 ELR 98, the Labour Court accepted statistics from the national Labour Force Survey as evidence of indirect discrimination. The statistics showed the participation rates in full-time and part-time employment, broken down by gender and family status. The Court held: -
- “The statistics show that a significant majority of part-time workers are women….. From these statistics it may be inferred that the abolition of part-time jobs will impact disproportionately on women and in particular on women who are lone parents. Tins merely provides confirmation of what the Court understands the position to be, based on the knowledge and experience of its members.”
The Court held that the impugned provision amounted, prima facie, to indirect discrimination and the burden of proof had shifted to the respondent to establish objective justification.
Mr Hughes also quoted from the Northern Ireland case ofMcFarland v Kincull Ltd t/a Ulster Weavers GiftstoreIT 265714, the Complainant was employed by Ulster Weavers Ltd as Store Manager. Her role was later expanded to include the role of Retail Buyer. Ulster Weavers decided to restructure the business and to split the Complainant’s combined functions into two new roles with the criterion of degree level education for each of the posts. Since the Complainant did not have a degree she was deemed ineligible to compete for the posts and was subsequently dismissed. The Complainant was aged 47 at the relevant date and fell within the age group 45-54. She submitted statistics from the Northern Ireland Census which showed that fewer of her age group were educated to a degree level in comparison to the younger age groups. The Industrial Tribunal was satisfied that the Age Regulations did not require statistical comparisons, where none existed, however, in this case they did exist and they
“showed that the claimant, in relation to her ability to appl to either of these two posts was put at a particular disadvantage”
Mr Hughes stated that the Respondent failed to provide statistics that would demonstrate that the Level 8 requirement was not a barrier which impacted on candidates over the age of 55. Instead, it produced a table showing“some statistics in relation to Director of Nursing (Acute) Campaigns which were launch (sic) in 2017”.This provided limited information in relation to eight candidates in four campaigns and did not shed any light on the total number of candidates in each of the campaigns, their age profile and, more importantly on the number and age of those who were rejected due to the newly introduced requirement.
Mr Hughes disputed the Respondent’s argument that the Complainant cannot claim that she has been put at a particular disadvantage as a result of the new eligibility requirement because of the level of funding invested in post-graduate nurse education since 2006. It further claims that the Complainant has elected not to enhance her formal education over the past 25 years and that if she were to succeed in her case it would effectively reward her for her decision to “sit on her hands and not seek enhanced qualification opportunities in the past 25 years”. Essentially, the Respondent is arguing that the Complainant cannot show disadvantage in circumstances where she could have obtained the qualification at any time during her working life. This argument, however, was advanced by the Respondent inGamesv University of Kentand dismissed by the EAT in the following manner: -
- “In our judgment the question whether a Claimant or persons sharing his characteristic is placed at a particular disadvantage by a PCPprovision, criterion or practicemust be assessed at the time when the PCP is applied. The question is, whether, at that time, it places them at a particular disadvantage. If it does, it is not an answer for the person applying the PCP to say that it would not have placed them at a disadvantage they had behaved differently at some earlier time it also seems to us to be implicit in the reasoning of the Supreme Court in Homer. The Supreme Court held that Mr Homer was at a particular disadvantage because he did not have time to acquire an LLB by his retirement age. He had, however, had many years in which to acquire an LLB. The Supreme Court did not suppose that this undermined his case — and this must, it seems to us, be because the time at which the PCP is applied is the time at which the assessment of disadvantage must be made.”
Objective Justification
Mr Hughes submitted that the Respondent was unable to show that the requirement to hold a Level 8 QQI qualification in order to be eligible to compete for the post of Director of Nursing was justified by a legitimate aim. He said that even if it is deemed to be justified, he contended that the Respondent was unable to show that the means of achieving that aim were appropriate and necessary. He citedHomer v Chief Constable of West Yorkshire Police, where the Supreme Court remitted the case to the Employment Tribunal to decide whether or not the employer’s actions were justified as a proportionate means of achieving a legitimate aim. The aim cited by the respondent was to facilitate the recruitment and retention of people of an appropriate calibre, and it was accepted by the Supreme Court that this was a legitimate aim. On its return to the Tribunal, the judge ruled that although the policy was justified for new recruits, to improve the quality of staff recruited and retained, it was not justified to impose it on existing staff. Although it was likely that a law degree would lead to a better calibre of adviser, there was no evidence of client demand for the existing advisors to be more highly qualified. Equally there was no evidence that retention would be affected by an exception being made for existing staff. Therefore, the respondent had not shown that: -
- “the requirement that existing Legal Advisers had to hold a law degree in order to be eligible for progression to the third threshold was appropriate or reasonably necessary to achieve that aim”
InGames v University of Kent, the Employment Tribunal had found that even if the requirement to hold a PhD did work to the particular disadvantage of older candidates, imposing it was clearly a proportionate means of achieving a legitimate aim and therefore justified. The legitimate aim cited by the respondent, included the need to recruit candidates of the highest calibre. On appeal, the EAT was critical of the reasoning of the Employment Tribunal. It said that it did not think that the Employment Tribunal had dealt adequately with justification:“it did not ask or answer the question whether the requirement for a PhD was necessary and no more than was necessary for achieving that aim”. The EAT quotedHomerat paragraphs 19-20 to demonstrate the correct approach to the issue of justification, and the following passage is particularly relevant: -
- “As the Court of Appeal held in Hardy & Hansons plc v Lax [2005] EWCA
Civ 846 [2005] ICR 1565 (31,32,), it is not enough that a reasonable employer might think the criterion justified. The tribunal itself has to weigh the real needs of the undertaking, against the discriminatory effects of the requirement.”
InMcFarland v Kincull Ltd t/a Ulster Weavers Giftstore,the aim cited by the respondent, without any particular evidence, was that it wanted a candidate with evidence of intellectual ability and that this could only be demonstrated by a degree level of education. The Industrial Tribunal, in concluding that the respondent had failed to provide the necessary objective justification, had this to say: -
- “In the circumstances, the tribunal is not satisfied that the respondent established the necessary objective balance to be struck between the discriminatory effect of the measure and the needs of the business. In the tribunal’s opinion, the legitimate aims, if the necessary balancing exercise had been carried out, could have been established by merely requiring, as a criterion, evidence of intellectual ability and/or fresh thinking and/or by some equivalent to the third level degree and/or by relevant experience, all of which could then have been tested at the interview process”
Mr Hughes referred to the fact that in April 2017, the Respondent approved temporary derogations to the same eligibility requirement for appointment to posts of Director of Midwifery in circumstances where the Respondent had failed to fill the posts in the first round of competitions. Candidates for the unfilled posts are now required to possess the appropriate Level 8 (QQI) qualification or“upon appointment, agree to undertake a contractual obligation to successfully complete a post graduate qualification at not less than Level 8 (QQI) ……within three years of appointment”
However, Mr Hughes contended that even with such a relaxation of the requirement the Complainant would not be eligible to compete for Director of Nursing posts.
In conclusion, Mr Hughes contended that the Respondent could not have weighed its needs against the clear discriminatory effects of the requirement on her and other persons in her age category. He claimed that if the necessary balancing exercise had been carried out, the aim could possibly have been achieved by recognising relevant qualifications obtained prior to the introduction of the QQI award system and/or relevant experience, or by an exception being made for existing staff.
Summary of the Respondent’s Position
Ms. Niamh McGowan, B.L., instructed by Comyn Kelleher Tobin, Solicitors, on behalf of the Respondent, disputed the claim and denied that the eligibility requirements for the post for which the Complainant applied indirectly discriminated against her on the grounds of age. She said that the Complainant argues that this constitutes indirect discrimination on grounds of age but gives no basis for this assertion.
She submitted that the Complainant has not adduced evidence from which an inference may be drawn that discrimination on grounds of age has occurred. Without prejudice to same, she said that the Respondent was in a position to discharge the burden of proof in relation to the allegations of discrimination. It submitted that the imposition of educational qualifications for Operational Director of Nursing posts, at a level equivalent to the entry level qualifications for nurses entering the profession since 2006, is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
Ms McGowan told the Court that in 2014 the Complainant was appointed to the role of Head of Nursing Integration and Development, on the Director of Nursing Band 2 salary scale, she remains in this role and is a valued employee of the Respondent.
She said that prior to the October 2016 competition the Complainant had unsuccessfully competed for the post of Operational Director of Nursing despite having, at that time, met the eligibility criteria.
Ms McGowan outlined the position that changes were initiated in July 2015 by the Respondentto the eligibility requirements for Director of Nursing posts in an Acute setting. This occurred as part of a review of the criteria for all nursing management posts. The requirement to have a post registration qualification corresponding to a minimum of Level 8 QQI was proposed to replace a requirement which previously stated that“candidates must have undertaken training in management appropriate to the role”. That requirement was proving problematic to assess. The vagueness of the statement raised issues of interpretation on three fronts; undertaken versus completed, agreeing a classification of what training in management meant and the appropriate level of the qualification. In some cases, very short programmes, from a few days to a few weeks were presented to the Respondent for consideration under this requirement Such programmes would not have had either a FETAC or HETAC designation.
Consideration was also given to the historic and continuing investment by the HSE in funding the completion by nursing staff of Level 8 and 9 programmes by the Office of Nursing & Midwifery Services Director, the HSE HR Directorate and the Quality and Patient Safety Directorate.
The Level 8 criterion was also deemed appropriate as posts such as clinical nurse specialist/clinical midwifery specialist require a minimum of higher/post graduate diploma, Level 8. Since 2006 all entry level nursing graduates have, as a minimum, a Level 8 qualification. The criterion also gave recognition to nurses who have committed time and effort to professional development and upskilling.
The amended criteria were published on the HSE website and through information channels within the Hospital Groups, Maternity, Paediatrics and Intellectual Disability Services as well as the Office of Nursing & Midwifery Services Director. This publication signalled to nurses and midwives the pathways for advancement and the organisational support available through funded education. It was also intended that the Department of Health, the INMO, the PNA and SIPTU were informed of the outcome of this review. However, it subsequently came to the Respondent’s attention that due to an oversight the INMO were not informed of this change in eligibility requirements at the time of the review. As a result of this, the amended eligibility criteria were put on hold until engagement between the Respondent and the INMO could take place and the previous eligibility criteria continued to apply. That engagement took place on 2nd November 2015.
No objection or issue was raised by the INMOto the introduction of the new educational eligibility criteria. It did propose changes to aspects of the nursing experience required and following the meeting with the INMO an amendment was made to the eligibility criteria. The amended criteria were signed into effect on August 2016 by the Director of Human Resources, HSE, and were applicable for the post of Director of Nursing (Operational) advertised by the Respondent in October 2016. As the Complainant did not possess the minimum educational qualification for the position she was not shortlisted for interview. Other people not shortlisted included those who had inadequate nursing experience.
Ms McGowan argued that the Complainant has not established aprima faciecase of discrimination. She said that the Complainant had presented no substantive or material evidence from which an inference of discrimination could be drawn. No evidence has been adduced which materially substantiated her claim that she is and/or persons of her age are at a disadvantage in comparison with persons of a younger age in meeting the eligibility criteria.
Ms McGowan stated that the Complainant has presented statistics in relation to educational standards of the general population. She submitted that these statistics along with speculation in respect of her own educational standard relative to other candidates about whom she has no specific knowledge, could not amount to a factual basis upon which an inference of discrimination can be drawn concerning the recruitment process for the post of Director of Nursing. She said that the Complainant had submitted no evidence that proportionately more persons of a younger age than hers were shortlisted or that only persons in a different age category were in a position to comply with the requirement to possess a minimum Level 8 qualification. In circumstances where the minimum educational requirement for entry to the nursing profession has, since 2006, been a Level 8 qualification and where since the year 2000 approximately 64% of the nursing staff of the Respondent have undertaken post registration qualifications to a minimum of Level 8 it is submitted that there was no basis on which it could be alleged that a person of the Complainant’s age was less likely to meet the eligibility criteria than a younger person.
Ms McGowan submitted that in a profession which requires Level 8 qualifications at entry level that a comparison with the general population’s level of qualifications is irrelevant. The minimum entry level requirement to the nursing profession since 2006 has been a level 8 qualification and the Respondent has supported staff at a rate of 1,500 per year every year since 2000, across all ages and occupying all posts, to attain these qualifications.
The Complainant was very familiar with the increasing professionalism and qualifications required for entrants to the nursing profession and how that had developed significantly over the years and yet claims that she considered her qualification, obtained 25 years previously, which were equivalent to a Level 6, to be equivalent.
Without prejudice to the foregoing, Ms McGowan submitted that the Complainant could not identify any particular disadvantage arising from the imposition of the educational qualification criterion in circumstances where, on her own account, she had previously been unsuccessful in two similar competitions when there was no such eligibility criterion. There is nothing to suggest that the Complainant would have achieved any greater success in this competition than she did in the earlier competitions even if there was no requirement for an educational qualification. She said that while it is accepted that the eligibility requirements changed, the Respondent relies on the legal authority for the principle that it is entirely the right of an employer to set down eligibility criteria for a post and decide what the essential requirements of a post are. Ms McGowan referred to Section 22 of the Health Act 2004 which provides that it is a matter for the Respondent to establish the requirements for employees provided it is done in accordance with the provisions of the Public Service Management (Recruitment and Appointments) Act 2004. She also relied upon Section 36 (4) of the Acts which state that it is not unlawful to require, in relation to a particular post: -
- a)the holding of a specified educational, technical or professional qualification which is a generally accepted qualification in the State for posts of that description, or
- b)the production and evaluation of information about any qualification other thansuch a specified qualification.
Ms McGowan submitted that a minimum Level 8 qualification is a generally accepted qualification in the State for posts from entry level nursing upwards and that to require Directors of Nursing to hold, at a minimum, the same qualification as the nurses for which they have responsibility is not discriminatory or unlawful.
In support of her position, Ms McGowan citedO’Halloran v Galway City PartnershipEDAO77 where the Court pointed out that the qualifications or criteria which are to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.
The Respondent distinguishes the instant case with the Complainant’s reliance on theGamesv University of Kentcase on the basis that there has been a prominent and well-recognised movement by the Respondent towards the upskilling of qualified nurses since 2000 which set out the opportunity for nurses to access fully funded education. Eligibility for this funding was not based on age. In addition to funding, candidates were supported with accommodations in the workplace and study leave to support their efforts to obtain qualifications. The Complainant had the same opportunity to avail of funding as any other nurse in the employment of the Respondent. At no point does the Complainant say she applied for funding or that she applied and was refused funding.
Ms McGowan referred to the Code of Professional Conduct and Ethics of the NMBI which provides that it is the responsibility of each nurse to keep his/her knowledge and skills up to date. The Report on the Commission on Nursing had also pointed out that nurses were personally responsible for their own professional development. Other than attending short CPD courses the Complainant elected not to enhance her formal education over the past 25 years. Therefore, she submitted that it was incumbent on the Complainant to update her own qualifications in the previous 16 years and it was not plausible to suggest that her failure to do so equated to discrimination on the grounds of age by the Respondent.
Objective Justification
Without prejudice to the Respondent’s earlier submissions that there was no evidence to support the Complainant’s assertion that she had been indirectly discriminated against on age grounds, Ms McGowan submitted that the Respondent’s revised eligibility criteria were objectively justified.
Correspond to a real need
She said that the Respondent could demonstrate that it satisfies the test set out by the Labour Court inInoue v NBK Designs. The Respondent’s position is that the inclusion of a minimum educational standard as part of the eligibility requirements for the post applied for by the Complainant, corresponds to a real need on its part. Ms McGowan said that the Respondent is under increasing pressure in terms of the regulatory framework in which it operates and is being held to increasingly high standards by bodies such as HIQA as well as bodies representing patient interests and the Courts. In terms of the development of the role of Director of Nursing it is imperative that it ensures that the best possible candidates are attracted to the post. The Respondent is charged to ensure that post-holders have the necessary expertise and training to carry out the complex duties of the role. It is clear from the nature and responsibility of the role of Director of Nursing in an Acute Hospital setting that ensuring the highest possible standards of education and training for incumbents to a post of such responsibility is a legitimate aim and corresponds to a real need on the part of the Respondent.
She said that the requirement for individuals intending to qualify as nurses to undertake an undergraduate degree programme was a huge sea-change in the nursing profession but reflected the dynamic and ever-evolving nature of the practice of healthcare, rapid improvements in technology and an ambition to increase and improve the standard of patient care, and to that end, the Respondent has invested hugely in further education/continued professional development of qualified nursing staff since 2000.
Since the year 2000 approximately 64% of nurses employed by the Respondent have obtained post-registration qualifications. Many of those upskilling are “certificate qualified nurses” i.e. those who qualified as nurses prior to the establishment of nursing as a graduate profession and this has meant them acquiring a Level B Honours Degree. For those recruited as graduates since 2006 they have obtained a Level 9 Master’s qualification or in some instances a Doctorate at Level 10.
Ms McGowan said that the minimum requirements for undertaking a post of Director of Nursing in an Acute Hospital setting also arises from the changing nature of the role of senior nursing managers. The role of a Director of Nursing in an Acute Hospital setting is dramatically different from, for example, the role of Matron which would historically have been the highest nursing management post in a Hospital setting. It is currently the most senior nursing manager/leader in a hospital. The Report of the Commission on Nursing (1998) recommended that this role should evolve from managing nurses and midwives to managing nursing and midwifery and that“all future matrons of large hospitals…. should be entitled Directors of Nursing.”
At 7.56 of the Report it states:-
- “…….future nurse and midwife managers will require a range of resource management, communication and personnel skills to ensure the provision of an effective and efficient health service. These skills need to be developed and efforts need to be made to give nurses and midwives opportunities to develop these skills. In particular, nurses and midwives should be encouraged to participate in third-level post graduate management courses.”
The role of Director of Nursing in an Acute Hospital setting is more corporately advanced than the role of Matron in the past, and a Director of Nursing is more involved in the business of the organisation. The role involves budgetary management of the nursing workforce and responsibility for professional practice. It is a post with significant and substantial responsibility. It is the responsibility of the Director of Nursing to be in a position to assure the Executive Management Team that the quality of care being provided by Nurses and Healthcare Assistants is to a satisfactory high standard. In seeking to do so, nursing management carry out clinical audits and use nursing metrics to assist in measuring performance, analyse the provision of care and to assist in identifying where improvements may be necessary.
Ms McGowan outlined for the Court in great detail the role and responsibilities of the post of Director of Nursing and stated that it requires complex business management skills and it is much more onerous in terms of business functions, strategic ability, finance responsibilities and quality of care than would previously have been the case with the post of Matron.
Directors of Nursing in large teaching hospitals may have responsibility for over 1,000 staff. She said that the following core competencies are critical to undertake the role: -
- •Strategic and system thinking,
•The ability to establish policy, systems and structures,
•The ability to lead on vision, values and process,
•A developmental approach to staff,
•Communication and interpersonal skills,
•A high level of knowledge and experience relevant to the role,
•Support the principle that the care of the patient comes first at all times and approach their work with the flexibility and enthusiasm necessary to make this principle a reality for every patient to the greatest possible degree,
•Maintain throughout the hospital awareness of the primacy of the patient in relation to all hospital activities,
•Participate in the hospital’s performance management programme.
Ms McGowan submitted that the removal of the Level 8 requirement, as contended for by the Complainant, would set a lower standard of accomplishment than that currently acceptable, a standard which was set in order to raise the standard of service provided by hospitals in the public interest. She said that the reality is that those who have applied for posts at the level of Director of Nursing who have not possessed at least an honours degree have not succeeded at interview because they have not been able to show suitability for the size and responsibility of the role. Even when the educational qualification was not a minimum requirement the Complainant had not succeeded at interview in satisfying the interview panel of her suitability.
Are appropriate with a view to achieving the objective pursued
Ms McGowan contended that the Respondent was entitled to set the eligibility criteria and minimum essential requirements for a post. In setting minimum eligibility requirements, to include a minimum level of educational qualification, the Respondent decided that a Level 8 Qualification on the National Framework of Qualifications was the appropriate minimum educational standard. The minimum eligibility requirements were set following extensive review and consultation by the HSE Office of the National Director of HR, along with the Quality and Patient Safety Directorate and the Office of Nursing and Midwifery Services Director. Across a range of management posts within the medical/healthcare sphere of operations there has been an increasing move towards a requirement for a minimum level 8 QQI. The requirement for nurse to undertake a 4-year honours degree to gain entry to the professional register of the NMBI, from 2006 onwards, has made it inevitable that a qualification for the Director of Nursing post would need to be set and it was not something that was introduced purely for the post that is the subject matter of these proceedings. It has been applied across all Director and Assistant Director Nursing and Midwifery posts. Since 2000 all nurses in the public health services have been able to apply for funding to enhance their qualifications to level 8 QQI and beyond. Nurses have been preparing themselves for promotion for many years by undertaking courses corresponding to a minimum Level 8 QQI qualification.
Are necessary to that end
Ms McGowan stated that the Respondent considered that the means of achieving the aim were also necessary. The qualifications set as a minimum are at a fairly basic level and certainly one which would be required for a much lower level managerial job in any private sector organisation. Given the extent of the role it is submitted that they are the minimum necessary. She disputed the Complainant’s contention that the same result could be achieved by taking professional experience into account without the necessity for an academic qualification. As already set out it is accepted that the Complainant has extensive experience in the area of nursing management at a senior level. However, there is no agreement that a candidate’s experience can be substituted for the appropriate minimum qualification particularly given that there are stringent requirements for experience also included in the eligibility criteria.
The Respondent is governed by the Commission for Public Service Appointments in the manner in which it conducts its recruitment processes. It is impermissible to have differing criteria for different candidates and this obligation is particularly heightened when there are both internal and external candidates applying. Secondly, seniority or years of experience is not a basis for promotion in the Respondent, merit is, in compliance with Codes of Practice of the Commission on Public Service Appointments.
Ms McGowan maintained that in setting the eligibility criteria the Respondent focus on the needs of the service and the public interest and should not be deflected in those goals by instead focusing its efforts on making provision for the career aspirations of potential candidates.
She referred to the Complainant’s reference to a derogation from the eligibility criteria being made in a competition for a post of Director of Midwifery where the post was not filled at first instance with the suggestion being that the same derogation should apply to her. She said that in that case, the derogation arose in exceptional circumstances and only after the recruitment process with the Level 8 criterion had concluded and left 5 positions unfilled. Ms McGowan suggested that it was not an appropriate comparison.
She said that the Director of Midwifery post is different to the post of Director of Nursing in an acute hospital. The Director of Midwifery posts in question were created in acute hospitals with a maternity unity and therefore different to a Director of Midwifery post in maternity hospitals, e.g. Coombe, Rotunda. The need for the post of Director of Midwifery arose following the issuing of the Report of the Investigation into the Safety, Quality and Standards of Services provided by the HSE to patients in the Midland Regional Hospital, Portlaoise, which report and investigation arose from the tragic death of new-born babies at the hospital and the subsequent management of patients and their families by the hospital and the HSE. Prior to the creation of this new post of Director of Midwifery in an Acute Hospital, the highest post for a midwife would have either a CMM2 (Clinical Midwifery Manager 2) or CMM 3 (Clinical Midwifery Manager 3) or Assistant Director of Midwifery.
Prior to this, midwives in these units were unlikely to have been pursuing a Level 8 Qualification with a view to advancement as there was no promotional opportunity to Director of Midwifery available in these units. However, the criteria for a Level 8 qualification was included in the eligibility criteria. Following the recruitment process 14 of the 19 posts were filled with candidates who had a minimum of a Level 8 qualification, leaving 5 posts unfilled. The 14 successful applicants for 9 locations had undertaken post graduate qualifications as part of their personal continuous professional development.
The derogation was given for the first filling of the remaining 5 posts as it was imperative that the recommendations of the report were implemented. The appointees for the 5 remaining posts gave an undertaking to the Respondent that they would obtain the relevant qualification within a period of three years from commencement in the post and agreed that if they failed to comply with this obligation that they would lose their post.
In the particular circumstances of how the vacancies arose, how they were unforeseen, and how there had not traditionally been a promotional career path in the particular units which would have justified the particular midwifes obtaining the Level 8 qualification the derogation was justified. There is no justification for applying such a derogation in respect of Director of Nursing posts in Acute Hospitals where progression through the ranks to the role of Director of Nursing is long established and the necessity for formal qualifications evident to all.
Discussion and Conclusions of the Court
Section 36(4) of the Acts
Section 36(4) of the Act provides as follows: -
(4)Nothing in this Part orPart IIshall make it unlawful to require, in relation to a particular post—- a)the holding of a specified educational, technical or professional qualification which is a generally accepted qualification in the State for posts of that description, or
- b)the production and evaluation of information about any qualification other than such a specified qualification.
The question of whether the impugned qualification is a generally accepted qualification for the Post of Director of Nursing is one of fact and degree.
It is not disputed that Section 22 of the Health Act 2004 provides that it is a matter for the Respondent to establish the requirements for employees provided it is done in accordance with the provisions of the Public Service Management (Recruitment and Appointments) Act 2004. It follows that the Respondent acted within its statutory authority in setting the eligibility criteria for the post of Director of Nursing in August 2016.
The Court notes that consultation on the new national eligibility criteria had taken place with the relevant Trade Unions involved, including the INMO, prior to its introduction in August 2016. The INMO raised no objection to the educational eligibility requirements, it did however seek changes to the service eligibility requirements, which resulted in such changes being made.
On that basis the Court is satisfied that the imposition of a specified educational qualification for the post of Director of Nursing in October 2016, was a generally accepted qualification in the State for posts of that description. Accordingly, the Respondent is entitled to rely upon Section 36(4) of the Acts as a full defence to the within claim. In any event, for the sake of completeness, the Court has proceeded to consider if, notwithstanding the defence provided at Section 36 (4) of the Acts, the Complainant has established aprima faciecase of unlawful discrimination.
Indirect Discrimination
The claim advanced on behalf of the Complainant in the within appeal is that she was indirectly discriminated against. Indirect discrimination arises where an apparently neutral provision criterion or practice “a PCP” puts persons having a protected characteristic at a particular disadvantage. InStokes v Christian Brothers High School Clonmel[2015] IESC 13, the Supreme Court per Clarke J, as he then was, at par 9.2, referred to the meaning to be ascribed to the term “particular” as used in this context. He held as follows: -
- “I am satisfied that the use of the term "particular" brings with it a requirement, as a matter of law, that it must be established that the extent of any disadvantage is significant or appreciable.”
The PCP giving rise to the disadvantage contended for in this case is the mandatory educational eligibility criteria for the post of Director of Nursing. The Complainant does not hold the required qualification. She contends that this requirement disadvantages persons in her age bracket (50-59) who are less likely to hold third level educational qualifications. In advancing that argument the Complainant relies on statistics produced by the Central Statistics Office which show that the number of people in that age bracket who hold Level 8 educational qualifications is significantly lower than those in younger age brackets.
The use of statistics is a permissible means of showing that an impugned PCP places those having a particular characteristic at a significant disadvantage relative to those who do not have that characteristic. However, the statistics relied upon must be relevant and probative of that which they are relied upon to show. This normally involves identifying a pool comprising those who can comply with the PCP (the advantaged group) and those who do not (the disadvantaged group) and comparing the number in each category by reference to the protected characteristic in issue, in this case age. If, in the context of the instant case, the advantaged group comprises significantly more people in a younger age group that those in the disadvantaged group there isprima faciediscrimination and the Respondent must objectively justify the requirement of the PCP giving rise to the disadvantage.
This approach was also adopted by this Court in Determination EDA072, PSEU v Minister for Finance and CPSU. That decision was appealed to the High Court and was upheld by O’Keeffe J, reported asNeil King and Ors v Minister for Finance and Ors[2010] IEHC 307.
In certain circumstances the identification of the appropriate pool can be problematic. It has been held by the UK Court of Appeal inGrundy v British Airways PLC[2008] IRLR 74, that the correct principle is that the pool must be one which suitably tests the particular discrimination complained of, but that is not the same thing as the proposition that there is always a single suitable pool for every case. In conducting an exercise of this nature, the question which the Court will always be concerned to answer is whether the impugned PCP constitutes an obstacle in the way of persons having the protected characteristic relied upon by the Complainant.
The decision of the House of Lords inRutherford v Secretary of State for Trade and Industry[2006] IRLR 551 is authority for the proposition that the pool chosen for comparison should only comprise those who have an interest in the benefit in issue who could hope to obtain that benefit were it not for the PCP.
Applying those general principles to the facts of the instant case, it appears to the Court that the only relevant pool for the purposes of comparison is one comprising those nurses who might qualify for the post of Director of Nursing broken down by reference to those who hold the requisite Level 8 Qualification in the same age bracket as the Complainant compared to those holding that qualification in a younger age bracket. In this case the only statistical evidence adduced is that relating to the educational attainments, broken down by age, amongst the population as a whole. The Court was invited to infer that those statistics are replicated in the population of nurses who have an interest in applying for the post of Director of Nursing. That would involve the Court engaging in an exercise of speculation as no such statistics are available.
Burden of Proof
It is well settled that the test for establishing if the probative burden shifts to the respondent in a case involving discrimination is that formulated by this Court inSouthern Health Board v Mitchell[2001] ELR 201. Here the Court held as follows: -
- “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
The primary fact contended for by the Complainant in the instant case is that the younger nurses are more likely to hold the educational qualification required to fill the post of Director of Nursing than those in her age bracket. She claims, on that account, that the impugned educational requirement places persons in her age bracket at a particular disadvantage. InStokes v Christian Brothers School Clonmel, Clarke J, as he then was, pointed out, at par 10.10 that the onus of establishing particular disadvantage rests on the person claiming indirect discrimination.
The only evidence adduced in advancing the contention relied upon by the Complainant is the statistics in relation to the population as a whole. For reasons already stated, the Court cannot accept that this evidence is sufficiently significant to raise a presumption that the impugned requirement places nurses in the same age bracket as the Complainant at a particular disadvantage.
For all of the foregoing reasons the Court must hold that the Complainant has failed to make out aprima faciecase of indirect discrimination. Accordingly, on this basis also, her claim could not succeed.
Determination
The Court is of the view that Section 36(4) of the Acts provides a complete defence for the Respondent to have a specified educational qualification eligibility requirement for the post of Director of Nursing advertised in October 2016. In any event, the Court finds that the Complainant in the within appeal has failed to make out aprima faciecase of unlawful discrimination on the age ground. Accordingly, the appeal succeeds, and the decision of the Adjudication Officer is overturned.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
22 May, 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.