FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: ST VINCENTS PUBLIC HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MS ADELINA SOIT DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-0026823. Ms. Soit, ‘the Complainant’ works in a clerical role for St. Vincent’s Hospital, ‘the Respondent’. She took a complaint under the Employment Equality Act 1998-2015, ‘the Act’ to the Workplace Relations Commission, ‘WRC’, alleging victimisation for having made a complaint in 2011 that she was being discriminated against because of her nationality. She is of Romanian nationality. She complained that there has been a continuum of victimisation against her up to the point at which she lodged her complaint on 2 February 2020. The Adjudication Officer, ‘AO’, decided that the complaint was not well founded. The Complainant appealed this Decision to this Court. THE LAW WITH REGARD TO CLAIMED CONTINUUM OF DISCRIMINATION: S. 77(5) of the Act reads as follows; (5) (a) Subject toparagraph (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 Commissionor Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainantparagraph (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. (c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term. No application was made to the WRC under s.77(5)(b) in the instant case. In examining the case ofCork City VEC v Hurley (2011) EDA1124,this Court noted that ‘it is clear….that in order for acts or omissions outside of the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit.’ In the case ofOccipital Ltd v Hayes (2018) EDA 184, the Court stated that ‘It is settled law that in order for 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 Acts for the making of a complaint’. The Supreme Court inCounty Louth VEC v Equality Tribunal (2016) IESC 40,approved of the Labour Court approach in ‘Hurley’ and noted that ‘..once such a complaint is made within six months from the last act or omission, all conduct found to form part of the continuum will be regarded as having occurred within time’ The effect of these judgments in application to the instant case is that for a continuum of discrimination to be proved, it is necessary for the Complainant to establish that there was an act of discrimination or victimisation within the 6 months’ cognisable period i.e. from 3 August 2019 to 2 February 2020,in which case the Court could consider earlier alleged acts of discrimination or victimisation outside of the cognisable period to determine if there was a continuum. It is the contention of the Complainant that she has been victimised by a failure to be promoted. There was a promotion competition within the cognisable period in which the Complainant’s application had been unsuccessful and the Court indicated to the parties that it wished to hear evidence regarding this competition. In accordance with the legal position as set out above, the Court advised the parties that if it was satisfied that there had been discrimination or victimisation of the Complainant in that competition, it would look at allegations of discrimination and/or victimisation in the period prior to the cognisable period. The Court advised that if no discrimination or victimisation could be proven to have occurred in that period then the appeal must fail. Both parties provided the Court with further submissions. ANOTHER MATTER: A matter that came to the attention of the Complainant subsequent to the complaint being submitted by her which she claims to be an act of victimisation was excluded from consideration by the Court as it did not form part of the original complaint and had not been raised at first instance. SUMMARY OF COMPLAINANT ARGUMENTS: When the Complainant was invited to interview for HIPE Clinical Coder IV Ref. 19E283, she was sent an email to confirm attendance and she did so by email. Then, she received a call to confirm attendance and she was told that HR did not have her confirmation. She concluded that her email was either deleted, blocked or spam. There is no other explanation. The interview was at 11 am. At 1.30 pm the Complainant met another candidate, who told her that the results were likely to be issued some days later. To her surprise, at 3.40pm, on that very day, the Complainant received an email to tell her that she was not successful. The hurry to rule her out made her ask for feedback as she believed she had done a good interview. This was organised but the Respondent refused to provide a copy of the interview questions. At the feedback interview, it was explained to the Complainant that she was evaluated on 5 competencies, on each of which she was asked two questions and that she had failed the interview because she did not give an example in the ‘Adapting to Change’ competency. However, there was only one question on this competency, which did not require an example. In the feedback, the Respondent’s representatives pretended that they had asked ‘In your current role, can you give us an example of changes initiative and how you dealt with it?’ This question was asked of the Complainant in a previous interview. After 13 years working for the Respondent, the Complainant is still on the same salary scale. SUMMARY OF RESPONDENT ARGUMENTS: In the competition concerned, there were 22 applicants. Seven, including the Complainant, were shortlisted for interview. The Court is asked to note that the nationality of applicants is not highlighted on any of the applicants’ CVs and is not tracked anywhere in the process. The candidates were assessed on the following; Knowing the Health Service and How it works Planning and Managing Resources Creating Team Spirit Embracing the change agenda Setting Standards and ensuring quality. The first competency listed is very general and is designed to ease candidates into the interview. It is not taken into account in the evaluation sheet. The candidates are assessed on the remaining four competencies. In the ‘Embracing the change agenda’ competency, the candidate is required to demonstrate consideration of change/change initiatives and then, in the second question under this heading, they are required to provide an example of a change initiative and how they dealt with such change. It is essential to provide examples that demonstrate the candidate has initiated a change or has been part of a change initiative. If a candidate fails one competency, they have failed the interview. They must have over 60% pass and they must pass all competencies. The scoring sheets are provided to the Court. The Complainant failed the competency ‘Embracing the change agenda’. When asked ‘In your current role, can you give an example of a change initiative and how you dealt with it?, she answered, ‘Change-comes because it’s progress here. I like change, with a change it’s good and it’s an opportunity to change myself/develop’. No example was given. Her score sheet reflects that and she was given a score of 50 under this competency. She failed in that competency. The Court is provided with the answer given by the successful candidate, which contains an example of initiated change. The Complainant’s assertion that she was not asked the question is demonstrably false as evidenced by the interview notes. Time was scheduled directly after all interviews so that it was possible to conclude the process and notify candidates of the outcome on the same day. The Complainant has not established a ‘prima facie’ case of discrimination or victimisation. She scored less marks than the successful candidate. At all material times, the Respondent’s focus was on securing the best candidate and not on race or nationality. It is not for the Court to determine who was the best candidate but, rather, whether discriminatory considerations influenced the decision taken. WITNESS EVIDENCE: MS. ADELINA SOIT: Ms. Soit is the Complainant. The witness stated that her submission reflected the full truth as she understood it. Under cross examination, the witness referred to her difficulties in getting information and that she had made a Freedom of Information, ‘FoI’, request. She stated that she had performed well at interview. The witness could not say if all other candidates were notified at the same time. She felt victimised because the result was so quick. The witness said that she was not asked the question regarding change in the form that was being suggested. She was asked a different question. She was asked her opinion of change in the workplace. In response to questions from the Court, the witness confirmed that her complaint of victimisation in respect of the competition were because she was telephoned to confirm that she would attend the interview, that the question on which she was failed had not been asked in the manner suggested and because she had not been given adequate feedback subsequently, including the fact that she was not given the questions that were asked. The witness said that this victimisation occurred because she was Romanian and had complained of discrimination in 2011. When asked where in the FoI request, the witness had requested the detailed information regarding the interview to which she was referring, the witness said that she had requested all HR records, which would include this information. She said that she asked for all data but did not get all data. MR. BRIAN HOGAN: Mr. Hogan is a HR Business Partner with the Respondent. The witness said that he had attended the adjudication and that the AO had asked the Complainant on a number of occasions on which ground in the Act was she basing her complaint? The witness said that there was silence. In cross examination the witness denied that the Complainant had said that the case arose because she is Romanian. When it was drawn to the attention of the witness by the Court that the AO Decision recorded the Complainant as claiming victimisation because of’ attitude’, the witness agreed that this had occurred. When reminded by the Complainant that he had said that there was only silence in response to that question, the witness recalled a reference to ‘attitude’ but could not say to whom it referred. MS. KATHLEEN KEENEY: Ms. Keeney is now Deputy Director of HR with the Respondent. At the time of the relevant competition, she was Head of HR Service Engagement. The witness explained that when she received the FoI request, she sought advice from the FoI officer. The advice was to provide the Complainant with her complete HR file. This did not contain details of interviews as they would be kept separately. The witness said that interview questions are never provided and that they were not requested by the Complainant. In cross examination, the witness said that the Complainant could have responded if she wanted something more than what had been provided. If she had been requested to provide details of the interview she would have done so. MS. DEIRDRE O'BYRNE: Ms. O’ Byrne is a Senior HR Executive with the Respondent. The witness gave evidence that she was responsible for organising the relevant competition. She viewed the call to the Complainant as fairly standard practice and its purpose was to identify if candidates were proceeding with their candidacy and, if so, that the suggested interview times were suitable. The witness said that it was not the practice to give out interview questions as they may be used again in subsequent competitions. This was an across-the-board policy. The witness said that the speed with which results could be given depended on the number of candidates but in this competition with so relatively few candidates, there was nothing unusual about the results being given out on the same day. In cross examination, the witness agreed that Board members must agree the candidates’ scores. In response to questions from the Court, the witness confirmed that all candidates for interview had been contacted by telephone in advance of their interview. While this might not occur in competitions with high numbers of candidates it was possible in this particular competition. The witness agreed that the practice might vary as between HR Executives. The witness said that she arranged interview feedback for the Complainant within one week. The witness did not get any contact from the Complainant on the matter subsequently. The Complainant was the only candidate to request feedback in this competition. MS. NIAMH GILLEECE: Ms. Gilleece was a HR Administrator with the Respondent at the time of the relevant competition. The witness stated that she sat on the relevant interview panel. The witness stated that the structure of the interviews was the same for all candidates, the same questions were asked of all candidates and when one board member was asking a question another member would take notes of the answer. The witness could recall the Complainant’s response to the question at issue from a reading of the relevant interview notes. No example of change was given. The witness ran the feedback interview for the Complainant. She recalled that the Complainant was adamant that the question concerned had not been asked. The witness was very clear that this question had been put. The witness said that it was not the practice to provide questions to candidates in feedback. In cross examination the witness was asked if she remembered asking every candidate the same question? She confirmed that she did. When asked if this included asking for an example, the witness said that it did and that she was going by her notes. In response to questions from the Court, the witness confirmed that the ‘Change’ competency was tested by two separate questions and that each candidate was asked both separately. The witness re-affirmed that exactly the same questions were asked of all candidates and that the Board did not follow up with prompts or supplemental questions. The witness said that she had never otherwise been in a situation where a candidate queried the questions asked. THE APPLICABLE LAW: Employment Equality Act S. 74 “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (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 2000or 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. DELIBERATION: This Court has set out (Teresa Mitchell v Southern Health Board, AEE/99/8) that a claimant alleging discrimination under the Acts ‘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 was no infringement of the principle of equal treatment.’ In application of this principle to the circumstances of the instant case, it is for the Complainant to prove that she was discriminated against in the competition in which she participated in the cognisable period covered by her complaint. To establish that she was, as claimed, the subject of victimisation would require her to show that she was somehow put at a disadvantage in the competition by the actions of the Respondent. Having considered the submissions of both parties and having heard the witness evidence, the Court is not satisfied that the requirement to establish a ‘prima facia’ case of unlawful discrimination has been met by the Complainant. The Court can see nothing discriminatory in the Respondent’s decision to contact all candidates by telephone prior to interview in order to confirm their attendance. Nothing in this action can be said to support a complaint of victimisation. The Court is further satisfied as to the credibility of the Respondent’s position with regard to the question that the Complainant denies having been asked. The Court found Ms. Gilleece’s evidence in this regard to be credible in every respect. The fact that comprehensive notes of the questions and answers of all candidates, including the Complainant, were kept confirms the Court in its view. The Complainant in her FoI request never asked for specific information regarding the competition. She was, however, facilitated with a feedback process at which she was given an explanation for the outcome. In the view of the Court, if the Respondent has a policy that it applies to all candidates not to provide interview questions in feedback then it cannot be said that not doing so in the case of the Complainant indicated any attempt at victimisation. Both Ms. O’ Byrne and Ms. Gilleece gave credible evidence as to this policy and no evidence to the contrary was produced. As the Complainant cannot show that she was disadvantaged in her candidature in the particular competition she has not met the ‘prima facia’ requirement set out in ‘Mitchell’. No evidence of victimisation or discrimination has been provided to the Court that meets this requirement. Therefore, no case of discrimination or victimisation has been established to have occurred in the cognisable period. That being so, the Court is not empowered to examine alleged acts of discrimination/victimisation that are said to have occurred outside of this period. The appeal must fail. DETERMINATION: The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Shane Lyons, Court Secretary. |
