Complainant

Respondent

Anonymised Parties

An Employee

A Hospital.

Representatives

Self.

Judy McNamara, 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-00034127-001

02/02/2020

The Complainant has been in the employment of the respondent since 20th March 2007. She remains in employment and her current job is HSSD Supervisor.

This complaint was received by the Workplace Relations Commission on 2nd February 2020.

The Complainant has a list of issues dating back to March 2011.

The first issue relates to the Complainant being appointed to the position of Acting Supervisor in HSSD Department. A short time after this, in May 2011 another permanent position came up and the Complainant applied, she came third in the recruitment competition and was placed on a panel that would last for 6 months.

In August 2011 another permanent position came up. The person in front of the Complainant on the panel had gone and the Complainant approached her manager in relation to this and express her interest in the job. The manager agreed and let the Complainant believe that she would arrange the paperwork for this promotion to take pace.

During the first week in October the Complainant received a letter from HR informing her that her acting position was coming to an end, the Complainant was happy enough about this and looked forward to returning to her previous position of HSSD Technician. A few days later the Complainant was handed a letter from her manager informing her that she was being offered an extension of one month to her Acting Supervisor position. The Complainant refused this extension as she identified this as an attempt to hold onto her until after such time as the 6 month panel had expired.

Following this refusal by the Complainant she asked her manager to remove her from the Supervisor roster until such time as the situation was clarified. Due to her manager going on annual leave the Complainant sought a meeting with her superior, this meeting did not take place.

The Complainant then wrote to the HR section requesting a meeting to discuss the situation. In this letter the Complainant stated that she felt used and discriminated against.

On the same date the HR Department rang the Complainant and offered her a permanent position of HSSD Supervisor and a few days after this she received her new contract.

The Complainant applied to attend a training course in Tallaght DIT, she contended that all other supervisors were asked and sponsored to attend this course. When the Complainant’s request was rejected she assumed that the Respondent had recognized her qualifications from abroad.

Moving on to 2015 the Complainant asked to be nominated to complete an Endoscopy Training Programme in Tallaght DIT. The Complainant’s immediate manager agreed, and the Complainant contends that she took her annual leave early in the year to avoid it clashing with the programme. On her return from annual leave she discovered that she had not been nominated for the course.

In 2016 the Complainant applied for an Accredited Leadership & Management Development programme which was being run in collaboration with UCD and would be restricted to staff on the Respondent. Whilst her line manager agreed with her the Complainant’s application for the programme was not successful.

Following this rejection, the Complainant wrote to the HR Employee Relations Division. The reply from the Learning and Development Division was, in the Complainant’s own words, disappointing but she accepted this and would try and move on.

The following morning (complainant believes it was 7th August 2016) when the Complainant entered the office she was shocked to see her line manager and one of her colleagues reading and discussing her email to the HR Department which was open on the computer screen. The manager made no attempt to close the email when the Complainant entered the office. The following day the Complainant sent another email to HR requesting a meeting with a representative from Employee Relations.

The Complainant then started to look for another position in the hospital. She eventually was offered the position of Clerical Officer in Pathology and she commenced this position on 31st July 2017, she remains in this position.

Since commencing this position, the Complainant has experienced some disagreements with her supervisor who has informed the Complainant of some errors she has made. On further investigation by the Complainant she proved that she had in fact not made the errors and reports that things have improved thanks to her investigating matters.

The Complainant has also suggested that she has applied for position that were advertised on the computerised system and her applications have been removed from the system.

In September 2019 the Complainant was invited to attend an interview for the position Hipe Clinical Coder Grade IV. After a conversation with a colleague on the same day as the interview the Complainant was informed by the colleague that he had asked a question in relation to when a result would be known from the interviews, the colleague was informed it would be know at the end of the week. The Complainant contends that she was surprised to find an email informing her that she had not been successful, this email was delivered on the same day as the interview had taken place. This quick response made the Complainant request feedback on her interview as she felt that she had performed well at the interview. The Complainant was then invited to a meeting to discuss her performance at interview.

In conclusion the Complainant states that she has worked hard for 13 years trying to perform to the highest possible quality. The Complainant contends that because she dares to say what she believes was not right that she has been denied any promotion or any opportunity for training, she has been humiliated.

The Complainant adds that she has applied for Grade IV Campaigns in other regions and has scored very highly at such interviews.

Background to the Respondent

The Respondent is one of the world’s leading academic teaching hospitals providing front line, acute, chronic and emergency care across over 40 different medical specialties in an integrated multi-hospital campus with over 2,500 staff employed.

Background to the Claimant

The Claimant’s employment history with the Respondent is as follows:

• 20th March 2007: Commenced employment with the Respondent on 20th March 2007 on a 12 month Fixed Term Contract as a HSSD Technician covering a Maternity leave.

• With effect from 10th December 2007 the Claimant was made Permanent HSSD Technician.

• In March 2011 the Claimant was successful in a competition for Acting HSSD Team leader (6 month contract).

• In May 2011 the Claimant was successful in a competition for a permanent HSSD Supervisor and placed on a panel.

• On 24th October 2011 the Claimant commenced as a Permanent HSSD Supervisor.

• On 31st July 2017 commenced as a Clerical Officer in the Pathology Department after an open competition, which is the position she currently holds.

A number of preliminary Issues arise in relation to the Claimant’s claims.

1. Time Limits: The claims as set out comprise eleven assertions, together with the following statement:

“02.10.19 Last episode from an 8 year long unfair treatment. All started in October 2011 when I refused to take responsibility like Acting HSSD Supervisor as I was next on a life panel for a permanent job – I think this involved me being treated less favourably than others; denied opportunities for training; denied promotions, limited professional progression; violation of my dignity and humiliation”.

The Employment Equality Act, 1998 states at section 77 (5): 

‘Subject to subsection (6), 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.’ 

The claims were referred to the Workplace Relations Commission on 2nd February 2020 and accordingly the most recent allegation, in order to fall within the 6 month period referral period provided for in the legislation, must have occurred between 3rdt August 2019 and 2nd February 2020.

The only reference to that period within the complaints furnished, is at the first line of the Specific Details of the Complaint i.e. “02.10.2019 Last episode from an 8 years long unfair treatment”. No further detail is provided regarding any alleged incident of victimisation which would fall within the six month reference period.

The complaints/allegations furnished refer to ‘8 years long unfair treatment’ and appear to stem from an alleged occurrence in 2011 through to February 2018 in relation to a number of competitions for roles for which the Claimant was unsuccessful, together with two training courses in that period which the Claimant was not eligible to participate in.

As outlined in the history of the Claimant’s employment above, the Claimant was in fact successful in a number of competitions throughout her career with the Respondent and it is absolutely accepted that she was unsuccessful in others, for valid reasons as set out in the substantive submission below.

On a preliminary basis however, it is the Respondents respectful submission that Claimant is statute barred from presenting these complaints, in light of the timeline detailed in the within claim.

Victimisation/Penalisation arising from an action under Section 74 of the Employment Equality Acts.

The Employment Equality Acts provides protection for workers against dismissal or any other adverse treatment in consequence of making a complaint or exercising a right under the Act. The dismissal or adverse treatment must be in reaction to the worker having committed a protected act which can give rise to victimisation and these protected acts are listed at Section 74(2), as follows:

a. a complaint of discrimination made by the employee to the employer,

b. any proceedings by a complainant,

c. an employee having represented or otherwise supported a complainant,

d. the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

e. an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

f. an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

g. an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The within Claimant has not, at any time in her employment, committed any of the above acts. The claims are grounded on a number of applications for training courses and roles for which she was not successful.

It is respectfully submitted therefore that the Claimant cannot establish a causal link between an action undertaken by her under Section 74 and a resultant adverse reaction or reactions by the Employer as required under Section 74 of the Act and accordingly cannot succeed in her claims of victimisation/penalisation.

Background to the claim.

Without prejudice to the preliminary arguments above, as noted, the complaints lie with allegations of penalisation/victimisation arising from a number of applications for roles and training programmes for which the Claimant was unsuccessful. Each claim is outlined separately below, for ease of reference.

The claims comprise eleven different assertions, together with the following statement:

“02.10.19 Last episode from an 8 year long unfair treatment.   All started in October 2011when I refused to take responsibility like Acting HSSD Supervisor as I was next on a life panel for a permanent job – I think this involved me being treated less favourably than others; denied opportunities for training; denied promotions, limited professional progression; violation of my dignity and humiliation”.

No further details as regards this specific statement are provided by the Claimant. The reference to 02.10.2019 is not explained or clarified.   Similarly, notwithstanding the second part of the paragraph references an event/incident in 2011, some 9 years prior to the lodgement of these claims, on review of the Claimant’s personnel file by the Respondent, no complaints/grievances in relation to October 2011 is contained first paragraph.

Contrary to the assertions made by the Claimant that October 2011 was the start of an “8 year long unfair treatment’ it is worthy of note that in March 2011, the Claimant was successful in a competition for Acting HSSD Team leader on a 6 month Contract, followed in May 2011 by a second successful application for a permanent HSSD Supervisor role, as a result of which she was placed on a panel and ultimately appointed in October 2011.

Complaint 1 - In 2015, the Claimant contends that she was refused access to an Endoscopy Training Programme in Dit Tallaght in 2015.

All training and educational courses within the Respondent are subject to funding.   The Education Policy for External Short Courses and Conferences which covers training requests from Staff within the Hospital outlines, at Section 6.O the procedures and guidelines for educational courses and the ‘approval for leave and/or funding and/or expenses’ will be based on specific criteria.   There are limited funds available for each department for training each year and not all requests for funding can be granted. Given that the application for this course was made by the Claimant some five years ago, it has not been possible for the Respondent to obtain notes or other documentation which might explain why her application was not successful.

When such applications are unsuccessful, a large number of staff will always inevitably suffer disappointment, given the limited funding and consequent constraint on participants.

In the circumstances it is not possible to explain why this application was not successful, however, the Respondent will confirm in evidence at the hearing of this matter that a substantial number of staff submit applications for the programme and only a very limited number can be accommodated.  

It is noteworthy that the Claimant did not raise this issue in 2015, nor since then, until filing the within claim.

Complaint 2: The Accredited Leadership & Management Programme is an accredited programme with UCD and is a full academic programme run over one year within the Hospital.   Places are always limited. Unfortunately, given that this complaint dates back to 2016, also a substantial time ago it has not been possible to access documentation in relation thereto as regards the Claimant. However, as with the Endoscopy Training Programme in Dit Tallaght in 2015, this programme is also popular and limited as to participants and not all applicants can be accommodated.

Again, the Claimant’s file does not contain any reference to a complaint or grievance suggesting that she was denied participation/access to this programme.

Complaint 3: Regarding the Claimant’s assertion that her Manager humiliated her by making public an email to HR, the Respondent is unable to address this contention in circumstances where this concern was noted within the claim as furnished to the WRC, but was not, at any time previously raised to the Respondent. Apart from a reference to 2016, no further details have been provided by the Claimant.

Complaint 4: contained within the Claimant’s complaint alleges: On ‘many occasions’ my CV and/or cover letter was deleted from my applications for certain jobs in ‘different other occasions’ it was accredited the idea that I was not interested in the jobs for which I apply and that I withdrew my application?

During 2017 and 2018, the Claimant applied for a number of roles, set out below:

·         HR Assistant (Clerical Officer) HR 16E255,

·         Grade IV Officer Histopathology, HR 17E 028,

·         HIPE Clinical Coder Grade IV – HR17E 039,

·         Grade IV Officer Statistic – HR 181043

·         HSSD Manager – HR 181259

On investigation by the Respondent regarding the Claimant’s position that her CV and/or cover letters were removed or deleted from the submitted applications, it became apparent that the documentation referenced by the Claimant as having been removed or deleted had in fact not been correctly uploaded/attached by the Claimant.

The application system within the Respondent for competitions is via a specific web recruitment route entitled ‘MyView’ a system utilised by the Respondent since 2016.

In this regard the Respondent’s advice to the Claimant to notify HR regarding further applications to ensure required documentation was received. Notwithstanding the incorrect uploading of any documentation required with these applications by the Claimant, the Respondent manually added the missing attachments and accordingly the Claimant was not excluded from any of the competitions applied for, as confirmed by the subsequent complaints contained in the complaint form to the WRC.

Complaint 5: Why in different other occasions it was accredited the idea that I was not interested in the jobs for which I apply and that I withdrew my application?

The absence of details relating to this complaint precludes the Respondent’s review of the Claimant’s position. No dates or clear outline of what occasions are being referred to; nor are the competitions/job applications referenced in Complaint 5 detailed.

Complaint 6: in the Complaint Form questions ‘Why on February 2018 when I applied for Statistics, Ref: HR 18i043, HR called me for interview but only time available was for one day between 9 and 12.30pm. I was returning from a trip and could not attend till after 1pm; refused, later received email confirming my withdrawal for Grade Iv Officer.

The hospital employs in excess of 2,500 staff. It is not always possible to accommodate requests for alternative interview times. Where possible, interviews scheduled while an employee is on leave is accommodated however this is not always possible.   If someone is not available for an interview slot, the process within the Recruitment Team is to withdraw them from the competition.

Complaint 7; queries‘Why, when I applied for HSSD Manager, when I was called regarding the application, it was stated ‘If you intend to take employment like manager I have to teach you how to make a proper application’ after my CV has been deleted once again from my application.

As clarified above, no documentation was deleted by the Respondent. The Claimant did not meet HSE essential criteria for HSSD Manager position – non-nursing applicants require level 7 in sterile services. The Claimant was not shortlisted because she did not have the necessary qualification. In this regard, please see Appendix 6, outlining the HSE qualification requirements.

Complaint 8: The Claimant asks ‘Why was my email (ADDRESS SUPPLIED) blocked by – email which was the contact email for the HIPE Clinical Coder job?

In the first instance, emails cannot be blocked. As noted above, all applications are made through the MyView Recruitment Web system and not via email.

A copy of the details relating to this particular post indicates unequivocally who the relevant contact was. The Respondent is wholly unaware of the relevance of anyone else in this context for that reason. In addition, prior to the within complaint to the WRC, this issue was at no time raised previously raised as an issue and the Respondent is therefore not in a position to put this matter any further.

Complaint 9: as set out ‘Why the email which informed me that my application was not successful was sent before selection process was finished’is again unclear. No details are provided to enable the Respondent to identify what communication the Claimant is referring to.

Complaint 10: Similarly, no details in relation to the query ‘Why, during the feedback process after the HIPE Clinical Coder job interview it was shown a total lack of transparency regarding the process of selection’is provided by the Claimant in her complaint.

This role is also the role which forms the basis for the eighth complaint made but in the absence of any further details regarding the assertion of a ‘lack of transparency’ it is not possible to respond to this query. It is noted however, that, as with the other complaints, given that this competition took place in 2017, the Respondent only became aware of the allegation of ‘lack of transparency’ on receipt of the within complaint form. It is clear from the wording on the complaint form that the Claimant was in receipt of feedback regarding the HIPE Clinical Coder role but again, there is no reference whatsoever on her file that she had an issue with alleged ‘lack of transparency’.

Complaint 11: The same issues arise in relation to the eleventh and final question ‘Why it was told to me that I was unsuccessful because I didn’t answer a question which was never asked during the interview? The Respondent, in the absence of further details, is at a loss to understand what interview the Claimant is referring to and accordingly cannot provide a response to this claim. The Respondent, yet again, was not aware of any issue in this context, until receipt of the within claim form.

Legal arguments

Prima Facie Case of Discrimination

It has been the well-established practice of the Equality Tribunal and the Labour Court to require a Claimant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated:

“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 those 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”.

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, as follows:

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

Notwithstanding that the particular circumstances of each case are different; the Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Equality Officer/ Adjudicator that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the Complainant cannot establish a prima facia case of discrimination in this instance.

The Respondent herein contends that no facts in the instant case exist from which it can be inferred that the Claimant was treated less favourably than another person is, has been, or would be treated, or that she was treated less favourably because of an action by her under Section 74 and consequently, the Respondent contends that the claim therefore cannot succeed.

Notwithstanding the above, if the Adjudicator deems a prima facie case to have been established by the Complainant, the Respondent respectfully submits that the Claimant was not, at any time, treated any less favourably than another person is, has or would be treated.

Conclusion

It is the Respondent’s position that any roles for which the Claimant was unsuccessful and the training programmes in which she could not participate were not available to her for the very valid reasons set out above. No victimisation of the Claimant occurred, she was not treated adversely or indeed differently to any other applicants for either vacant roles or training programmes.

The timeline of the complaints submitted in the complaint form covers a period from sometime in 2011 to October 2019 alleging ‘8 long years of unfair treatment’.

Review of the Claimant’s career however, indicates that she was successful via competition on four different occasions during that same period, the latest being to the role she currently holds, in July 2017 and that accordingly any suggestion of victimisation is without foundation.

It is accordingly respectfully submitted that the Claimant cannot satisfy establish having been exposed to victimisation nor suffered penalisation or discrimination in any manner and therefore her claims cannot succeed.

The Respondent representative has initially raised the subject of time limits.

In situations of alleged continuing discrimination over a period, s.77(6A) of the Employment Equality Acts allows for the referral of such discrimination provided that the claim is submitted within six months of the point in which the discrimination ended. This section which was inserted by the Equality Act 2004, provides welcome clarification on the issue of the precise jurisdiction of the Tribunal when dealing with discrimination over a lengthy period and in excess of a period of six months from the date of the referral of the complaint. The subsection operates independently of the more general six month time limit contained in s.77(5).

The Labour Court has determined the two sub-sections within s.77 deal with different forms of continuing discrimination, s.77(5) of the Employment Equality Acts deals with a situation in which there are a series of separate acts or omissions on the part of the employer which, while not forming regime, rule practice or principle, are sufficiently connected so as to to constitute a continuum of discrimination. Effectively this deals with a situation whereby there are separate manifestations of the same disposition to discriminate. In order for a complainant to succeed in demonstrating a continuum or chain of discrimination, it is necessary to demonstrate that there were acts of discrimination within a period of six months prior to the lodgement of the proceedings with the Tribunal which were significantly linked to the other acts of alleged discrimination. On the other hand s.77(6A) was found to pertain to a single act extending over a period of time and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant.

(Ref: Employment Equality Law; Bolger, Bruton and Kimber – Round Hall 2012 (p. 758/759).

In this instant case I view the alleged acts of discrimination are separate from one and other and as such the only complaint falling within the time limit of six months is the outcome of the interview dated 23rd September 2019. After attending for interview on this date the Complainant met another candidate who informed her that he had asked when the outcome of the interview would be made known, he informed the Complainant that the results would be made known on by Friday 27.09.2019. The Complainant was shocked to receive an email on 23rd (the date of the interview) informing her she had not been successful. The Complainant asked for feedback and was informed that she had failed to answer one of the competency-based questions asked at interview.

As per complaint form the Complainant alleges that she was penalised throughout her employment.

The representative for the Respondent has correctly defined penalisation as follows:

The Employment Equality Acts provides protection for workers against dismissal or any other adverse treatment in consequence of making a complaint or exercising a right under the Act. The dismissal or adverse treatment must be in reaction to the worker having committed a protected act which can give rise to victimisation and these protected acts are listed at Section 74(2), as follows:

a. a complaint of discrimination made by the employee to the employer,

b. any proceedings by a complainant,

c. an employee having represented or otherwise supported a complainant,

d. the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

e. an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

f. an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

g. an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The Respondent representative goes on to state:

The within Claimant has not, at any time in her employment, committed any of the above acts. The claims are grounded on a number of applications for training courses and roles for which she was not successful.

It is respectfully submitted therefore that the Claimant cannot establish a causal link between an action undertaken by her under Section 74 and a resultant adverse reaction or reactions by the Employer as required under Section 74 of the Act and accordingly cannot succeed in her claims of victimisation/penalisation.

When asked to state which of the grounds such alleged penalisation was linked to the Complainant stated it was due to her attitude.

Having considered all aspects of this complaint I must conclude that the complaint as presented under section 77 of the Employment Equality Act, 1998 is not well founded and therefore fails.

Having considered all aspects of this complaint I must conclude that the complaint as presented under section 77 of the Employment Equality Act, 1998 is not well founded and therefore fails.

Employment Equality; Penalisation.