Complainant

Respondent

Anonymised Parties

A Staff Nurse

A Hospital

Representatives

Kevin Bell B.L. instructed by Lavelle Solicitors

Aoife McFadden IBEC

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-00008926-001

23/12/2016

The complainant has submitted claims of discriminatory treatment on the ground of race on the 23rd of December 2016 (Adj-00006549) and again on the 23rd of March 2018 (Adj-00013621) under Section 79 of the Employment Equality Acts, 1998 – 2015 against the respondent.

The cognisable period for the claim submitted on the 23rd of December 2016 dates from the 24th of June 2016 to the 23rd of December 2016.  

A previous decision by another adjudicator in respect of Adj -0006549 dated 10th of April 2018 was quashed by an order of the High Court dated 18th of October 2018 and the matter was remitted back to the WRC for a de novo re hearing of the matter by a different adjudicator.

This claim was re heard by me Orla Jones along with other later claims submitted by the complainant under Adj-00013621.

I proceeded to a hearing of these matters on the 24th of January 2018.     Final correspondence in respect of these matter took place on the 5th of April 2019.

I have decided to exercise my discretion to anonymise the names of the parties given the sensitivities involved in this case.

The complainant submits that

she is employed as a staff nurse in the Respondent’s hospital since June 2004,

she is of Indian nationality,

since taking up this employment she has successfully completed a post graduate diploma respiratory nursing and is undertaking a masters in the same,

she has applied for a number management and specialist jobs from August 2007 to June 2016 and on each occasion, she has been unsuccessful,

the reason that she has been unsuccessful in her promotion applications is due to her race,

In April 2016, she wrote to the Respondent raising allegations of discrimination on the ground of race in respect of promotional competitions,

A meeting took place with the Respondent in July 2016 to discuss the matters raised by the complainant,

It was agreed to investigate the issues involved and respond by August, but a response was not received until September 2016.

The respondent submits that

the Respondent completely rejects the allegations of discrimination, on the ground of race,

they conducted the June 2016 promotion competition, and all earlier competitions involving the Claimant, in line with its Recruitment Guidelines,

they denied that there was any continuum of discrimination or that the earlier promotion competitions should be considered by the Hearing.

Preliminary issue of time limits

The Complainant advised the hearing that she is an Indian national. She claims that over the course of 14 separate promotion/recruitment processes, she has been discriminated against by the Respondent in that she has been consistently passed-over in favour of candidates who are less experienced and/or less qualified, on the basis of her national origin/ethnicity.

The processes which are the subject matter of the Complainant’s present claim date between August 2007 and December 2016.

In addressing the complaints of discriminatory treatment, it is necessary to consider the limitation periods provided in the Employment Equality Acts. Section 77 of the Employment Equality Acts provides a limitation period of six months within which claims must be made.

The Applicable Law – Time Limits

Sections 77(5) and 77(6) A of the Employment Equality Act, 1998 to 2015 state as follows:

77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commissioner Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a)shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(6A) For the purposes of this section —

(a) discrimination or victimisation occurs —

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operates over a period, throughout the period,

The respondent submits that the cognisable time period for this claim (Adj-00006549) submitted on the 23rd of December 2016 dates from the 24th of June 2016 to the 23rd of December 2016.  

The complainant advised the hearing that the discriminatory treatment was ongoing throughout her employment with the respondent with the most recent alleged act of discrimination relating to an interview which took place on 24 June 2016.   Under Section 77(5) of the Employment Equality Act the Claimant had until 23 December 2016 to refer the claim.

The Respondent completely rejects the allegation of discrimination. It is submitted that they conducted the June 2016 promotion competition, and all earlier competitions involving the Claimant, in line with its Recruitment Guidelines. The respondent denied that there was any continuum of discrimination or that the earlier promotion competitions should be considered by the Hearing.

The Claimant submits that she met with the Respondent after the competition of June 2016. She had put forward a complaint in relation to various selection process and competitions that she had participated in since 2007.    The Respondent undertook to review these complaints and revert to the Claimant.

The Respondent submitted the details and the history of each interview the Claimant participated in detail, since 2007. They also responded in this with the issues the Claimant had raised at the meeting.

In considering the assertion that these allegations represent a continuum of ongoing discrimination it was submitted by the respondent that the Equality Tribunal, when dealing with cases of this type has given weight to the fact that the same employees were involved in each instance. The acts complained of must also be related and not stand-alone events as each of these promotion competition were. The respondent submits that in the present case, there are a number of earlier acts complained of where, initially, the Claimant did not assert any racially discriminatory motive to her non-selection at all.  The respondent states that in almost all of the cases complained of herein, different individuals were involved in the panels charged with selecting the successful candidate.

The respondent advised the hearing that the competitions run were for different posts at different times, based on different criteria. It is submitted that it is not possible to compare one competition to another or to say they are all separate instances of the same disposition to discriminate as to do so would be to conceive of a conspiracy on so grand a scale to be simply unbelievable.

The respondent advised the hearing that the allegations relate to an array of positions, both full time and part-time across different practice areas, and that the interview boards for the campaigns from 10th of January 2018 back to December 2013 include over 21 different staff members and external interviewers with a different mix of individuals across the panels charged with selecting the successful candidate. It is simply not possible to compare one competition to the other or to say that they are all separate instances of the same disposition to discriminate

In deciding whether or not the claim relates to continuing or ongoing discrimination with the most recent incident taking place on the 24th of June 2016 I am guided by the Labour Court Determination EDA 179 in Dunnes Stores v Breda Mulholland which states as follows:

“It is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint”.

The Court also stated that: “Only if such acts of discrimination are found to have occurred in that period, can the Court consider whether Acts outside the cognisable period can be considered as part of a continuum of discrimination.

Thus having regard to the above and the circumstances of this case I advised the parties at the hearing that I would hear all of the evidence but that I would first look at incidents and allegations of discrimination alleged to have taken place within the cognisable six month period and if I find that such incident/s amount to discrimination I would then be in a position to extend my investigation to include the investigation of allegations outside of the six months relevant period.

Allegation of discrimination in respect of Respiratory CNS Post – June 2016    

The issue for decision by me now is, whether or not, the respondent discriminated against the complainant on the ground of race in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015.     In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.    

Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”

Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins… “

Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because she is Indian.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination.   If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the claimant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court and stated as follows: -

“The mere fact that the Claimant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Claimant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

The complainant advised the hearing that she was treated differently on grounds of race by the respondent when she was unsuccessful in her application for the post of Respiratory CNS Post in June 2016.

The Complainant advised the hearing that she finished second in this competition behind Ms. M, an Irish applicant. The Complainant advised the hearing that she had seven years more experience than Ms. M and that she was currently working in the relevant speciality (i.e. respiratory) and had been for years.   The complainant stated that Ms. M’s, most recent experience was in a different albeit similar field.

The complainant submits that the decision-making process in respect of this competition was not transparent and that the marking sheets used to determine the winner of the competition do not add up to the overall scores awarded to candidates and that marking sheets for relevant competencies are missing.  The complainant advised the hearing that she has never been furnished with the relevant marking sheets, nor has she ever been furnished with the interview notes from the members of the panel in respect of this competition.

The respondent advised the hearing that the complainant was provided with the relevant score sheets which is clear from the fact that they were appended to her submission however the respondent acknowledged that the score sheets submitted by the complainant appeared to be missing one page which contained the score for the communication competency.   The respondent provided this missing sheet in their submission to the Commission and it was also provided to the complainant.  

The respondent in respect of this post advised the hearing that the complainant was unsuccessful in this competition but that she was placed second on the panel to be considered for future vacancies.

The respondent advised the hearing that the claimant has incorrectly concluded that that the only reason that she did not achieve the promotion was that she was being discriminated against due to her race. The respondent advised the hearing that the reason the claimant did not achieve the promotion was that she was not the most suitable candidate, and that this is reflected in the lower scores the claimant attained at interview as against the successful candidate and also because the successful candidate was more suitable for the role as regards, relevant experience and education.   The respondent provided details of the outcome of this competition and advised the hearing that 5 candidates were shortlisted for interview for this position, 3, of Irish origin and 2 of Indian origin. The successful candidate scored 447 points overall, while the claimant scored 422.   The respondent provided the hearing with a copy of the scoresheet for each candidate and a breakdown of the marks awarded for each competency.

The respondent stated that the successful candidate had 8 years’ experience as a senior staff nurse, 17 months of which she gained experience as a senior staff nurse in the area of respiratory nursing and over 7 months acting clinical nurse management experience in respiratory nursing in the respondent hospital.

The respondent advised the hearing that the complainant by comparison was a staff nurse with considerable experience albeit at a lower grade, and 2 months acting Clinical Nurse Manager in the respondent hospital. Whilst the claimant has some managerial experience, it was prior to her qualifying with a degree in Nursing and it was in a different speciality (intensive care).

The respondent went on to state that comparing the successful candidate’s education with that of the claimant; both have a Bachelor of Science Degree in Nursing with a Post-Graduate Diploma in Respiratory Nursing.

The respondent stated that the Curriculum Vitae of the claimant and the successful candidate (also provided to the hearing) do not display any significant discrepancy in terms of qualification or experience on their face, the claimant having more years of service as a staff nurse overall but the successful candidate has, in those fewer years of service, achieved comparable educational qualifications and experience to that achieved by the claimant.

The respondent added that when the claimant gained her 2-month acting Clinical Nurse Manager experience in the respondent hospital in the November and December 2008, she had yet to gain a qualification in respiratory nursing which she obtained in from the Royal College of Surgeons of Ireland in 2013. The successful candidate gained experience in the role of Clinical Nurse Manager whilst qualifying with the Post Graduate Diploma in Respiratory Nursing contemporaneously in 2009 and 2010.

The respondent advised the hearing that the claimant has alleged that there were discrepancies in relation to the recommendation of the selection committee for the June 2016 CNS in Respiratory Medicine competition indicating that 2 candidates were deemed suitable for appointment. The respondent advised the hearing that the complainant was panelled at number 2 following this competition which is consistent with her understanding of events.

The claimant’s representatives have highlighted that the respondent later contradicted the complainants positioning on that panel in email exchanges between the complainant and the Head of Recruitment in December 2017, approximately 1½ years after the date of the interview and at which point the panel had expired.  

The respondent in its submissions and in its evidence to the hearing acknowledge that the complainant was incorrectly advised in those email exchanges of December 2017 that she had been placed 3rd on the panel when in fact she was number 2 on that panel.

The complainant alleges that this material contradiction amounts to an unlawful and intentional interference with, and breach, of competition data concerning panel formation for the Clinical Nurse Specialist Respiratory post of 24th June 2016.   This is denied by the respondent who states that the contradiction arose as a consequence of the respondent erroneously quoting the panel outcome of a separate competition file for which the complainant had been placed as the 3rd ranked candidate for a different competition.   While this oversight amounted to an error on the part of the respondent, the respondent states that the inferences drawn by the complainant are misguided and that no evidence has been provided to demonstrate interference with competition data.

The respondent also submits that its interview scoring system is under constant review to ensure that it reflects and supports objective criteria and that individual scores are referenced in the case of Munck V National University of Ireland Maynooth DEC-E2005-030 as being indicative of an objective process.

Furthermore, the respondent adds that the claimant is unable to point to any event during the interview process which would indicate a discriminatory bias on the part of the interview panel and there is no pattern of discriminatory bias in the respondent hospital. Although the percentage of non-Irish Nurse Managers in the hospital is below the percentage of non-Irish nurses in the Hospital on an overall basis, that percentage is in line with those in the other large teaching hospitals in the area.

The respondent advised the hearing that they selected the best person for the job based on their qualifications for the role, not on the basis of the applicant’s race or any other similar criteria.

The respondent advised the hearing that the complainant in her arguments has repeatedly emphasised that she is more qualified or experienced and thus more suitable than other candidates.   In doing this she is equating suitability to length of service.     The respondent advised the hearing that a greater length of service does not necessarily equate to a greater ability or suitability for the post. The respondent stated that it is important to emphasise that promotions are based on ability which is assessed through competency-based interviews and are not based on length of service.

The respondent also advised the hearing that the complainant had lodged a complaint with them in April 2016 and that the respondent had met with the complainant in July 2016 to discuss the issues raised by her and replied to the issues raised by the complainant in a detailed reply dated 9th of September 2016. The respondent stated that it had in this reply addressed the issues raised by the complainant and in some instances advised her that it would be making recommendations to interview boards in the future in respect of some of the issues raised by her regarding the recording of marks on score sheets and also in respect of her concerns that all posts be advertised both internally and externally. The respondent stated that it had also as a result of her complaint advised the complainant that it would be recommending that a focus group be set up to explore the reasons behind the low percentage of overseas nurses (13%) in cnm1 and cnm2 posts.

The respondent also advised the hearing that having said that this percentage is not overly disproportionate considering that the proportion of Indian nurses is about 19% while the proportion of Indian nurses in promotional grades is 12%. The respondent stated that this is about the same as the percentage of Irish nurses in promotional posts as 72% of its nurses are Irish with 61% of promotional posts held by Irish nurses.   The respondent added that many overseas nurses opt to remain in staff nurse grades as these retain the ability to earn overtime for additional hours worked unlike managerial grades and that many overseas nurses opt to work overtime to enable them to send money home to their country of origin to support family members.

The respondent advised the hearing that it had in this letter of 9th of September 2016 offered to support the complainant in preparing for and participating in future interviews and offered her the assistance of an external professional interview coach in order to assist her to achieve her potential in any future competitions. The complainant did not accept this offer.

The respondent in its evidence to the hearing stated that the complainant may not always have demonstrated her experience and ability in interviews and stated that it had offered the complainant feedback after interviews on more than one occasion, but the complainant declined to participate in such feedback.

In considering these matters I am aware that it is not the role of the Workplace Relations Commission or the Labour Court to substitute their views on the relative merits of candidates for those of the designated decision makers or to determine who the most meritorious candidate was. This was set out in Moore Walsh v Waterford Institute of Technology Labour Court, EDA 042. The Labour Court held that its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.  In adopting the threshold of ‘manifest irrationality’, the Labour Court has placed a high onus on complainants.

In O'Halloran v Galway City Partnership, EDA 077 the Labour Court stated that the qualifications or criteria which are to be expected of candidates are a matter for the employer in every case. 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.

Having regard to all of the circumstances of this case and the totality of the evidence adduced I cannot accept that the Complainant’s failure to attain the position in the June 2016 competition is a fact from which discrimination on the grounds of race could be inferred and accordingly, I do not find that there were incidents of discrimination within the cognisable period of the complaint.     Accordingly, I am precluded from looking at allegations which predate the cognisable 6 months period.

I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –

In all of the circumstances of this complaint, I do not find that there were incidents of discrimination within the cognisable period of the complaint.  

Discrimination, Race, time-limits, promotion