Complainant

Respondent

Parties

Somy  Thomas

St Vincents Private Hospital Limited

Representatives

INMO

Mairead McEntee S.C instructed by Arthur Cox LL. P

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00044302-001

24/05/2021

The complainant, Ms Somy Thomas complains that she has been discriminated against by her former employer, St Vincent's Private Hospital, Dublin on the grounds of race contrary to Section 6(2)(H) of the Employment Equality Act, 1998-2015 when she was not selected for promotion following a competition held on November 25th, 2020.

The complaint relates to a competition for a Locum Clinical Nurse Manager 2, fixed term post which had become vacant due to the promotion of the incumbent.

The complainant also claims she was victimised by her employer for challenging the outcome of the interview process under Section 74(2) of the Acts.

The complainant was employed as a Clinical Nurse Manager 1 in the High Dependency Unit (HDU) of the respondent hospital and began her employment in April 2019.

She has a Diploma in Nursing and Midwifery from Kerala Nurses and Midwives Council in India and initially worked as a staff nurse in Nephrology and in a Medical Intensive Care Unit in that country. In October 2002 she was promoted to a nurse manager in the ICU which she continued up to June 2004 when she moved to Ireland.

Ms Thomas successfully completed the BSc in Nursing in 2008 and a Post-Graduate Diploma in Respiratory Nursing in 2013. In 2018 she completed a Master’s degree in Respiratory Nursing, a Foundation Critical Care Nursing in 2020 and the Professional Diploma in Clinical Leadership 2021.

The interviews for the post were conducted on November 25th, 2020. There were total of four candidates: all HDU staff. Detail was submitted on the composition of the interview board and on the other candidates.

 Ms Thomas was advised of the interview outcome the next day November 26th, 2020, by a member of the interview board, Ms Hammond and told it had been a close competition and a difficult decision for the interview panel. She was also told who the successful candidate had been.

The next day Ms Hammond met the complainant again and asked if she was upset about the interview outcome. She responded by saying that she was disappointed about the unfairness of the whole competition and asked her whether the person who was awarded the post was even eligible to apply for the job in the first place.

The complainant further asserted that the competition's had not been conducted in compliance with the SVPH Recruitment and Appointments Policy and that she was greatly disappointed by the fact that the interview board had not followed fair procedure during the conduct of the competition. Ms Thomas again asserted that the successful candidate was not eligible to apply for the post.

Ms Hammond responded that SVPH did not have to follow a recruitment policy as the hospital was a private hospital and not a public one and the complainant then advised Ms Hammond that she had decided to make a formal complaint to management.

On November 27th, 2020, the complainant wrote to her Director of Nursing (DoN), Anita Boylan, expressing concerns about the conduct of the competition.

The complainant was adamant that the hospital had not adhered to its own Recruitment and Appointments Policy and sought an investigation under the Hospitals Grievance Policy into the appointments process.

One aspect of the eligibility criteria required that a candidate must have at least five years post registration relevant experience with a minimum of two years at management level. The successful candidate was in a Temporary Clinical Nurse Manager 1 role for two months prior to the interviews for the CNM2 post. The candidate had no relevant experience prior to that.

The INMO wrote to the DoN on December 9th, 2020, via email, and echoed Ms Thomas’ concerns, stating that if the preferred candidate did not meet the eligibility criteria, the appointment be set aside, and that she be appointed to post.

The DoN responded on December 10th, 2020, and confirmed the matter was receiving urgent attention and it was currently under "investigation/review".

On December 17th, 2020, the DoN responded further, stating the hospital was mindful of its responsibilities under Section 8(8) of the Employment Equality Act 1998 and principles and procedures in the Hospital Recruitment & Appointment Policy. Ms Boylan then wrote,

"It was considered that the filling of this post did present a learning opportunity for all the applicants concerned, as appointments such as this do not occur very frequently in HDU. It was decided that the provisions of this opportunity for all applicants should take precedence over the normal provisions of such a competition, and that all applicants would be interviewed even though some applicants did not meet the selection criteria (including Ms Thomas). Taking this decision into account, and on reviewing the competition file I am satisfied that objectivity was maintained and that the process was fair an objective. "

The INMO responded on December 21st, 2020, expressing surprise at the apparent abandonment of the Job Specification criteria and also the reference to Ms Thomas not meeting the eligibility criteria. The INMO reminded the DoN that the complainant had been in a Clinical Nurse Manger 1 post in St Vincent's for 19 months, had previous management experience in the Irish Public Sector and in India. The INMO continued to seek that the complainant be appointed to the higher post.

Further correspondence issued between hospital and the INMO and the CNM2 appointment was placed on hold. Ms Thomas at this stage was in India due to a bereavement. On her return a meeting was arranged, and this occurred on February 24th, 2021.

At this meeting, the Director of Nursing now questioned Ms Thomas' management experience in India, which had not been raised when she applied in April 2019 for her CNMl post in the Hospital. Her management experience in India was acknowledged and accepted by St Vincent's when appointing her to post.

In the hospital minutes of the meeting of February 24th, 2021, the DoN states, in relation to the complainant’s experience in India the following.

"The unit is high intense, and title is not a CNM, find it difficult to equate running the HDU Unit. I am not comfortable to equate to the role. Title could have gone down on their CV.

Ms Thomas correctly clarified that she had answered this question when she was appointed to her CNMI post in St Vincent's Hospital in 2019. Both Ms Thomas and the INMO were surprised that the Director of Nursing was questioning the experience in India. There is no doubt that Ms Thomas had been recruited to the post of CNMI in HDU in 2019 mainly on the basis of her ICU managerial experience in India. This is captured in the interview notes of the CNM1 competition of 2019.

The February 24th, 2021, meeting concluded without agreement on the complainant’s appointment. Ms Thomas did agree to provide further information on her management experience in India but did caution this may be difficult to receive in a short time frame.

However, of concern, the DoN  also refused to confirm that if Ms Thomas provided further clarity on her role in India, she would still not commit to appointing Ms Thomas to post.

Following the meeting the INMO recorded its concerns regarding the hospital’s approach.

In 2018 the successful candidate for the Locum CNM2 post, returned to nursing after an extended absence of more than 20 years from the profession. In Ms Thomas personnel file is a redacted communication dated, November 30th, 2020,

This email relates to the successful candidate and her previous professional career. Reference is made to experience in Ireland and in Texas USA. It is noteworthy this candidate was not asked to explain or verify their experience in Texas, it is readily accepted, Ms Thomas Indian experience was not.

On March 10th, 2021, Ms Thomas received a letter from her Director of Nursing. Ms Boylan advised Ms Thomas there was now a change in circumstances, and the substantive CNM2 post holder was now returning to post, with immediate effect. No explanation was given, and it was clarified later the CNM2 returned due to a change in circumstances.

Regarding a prima Facie Case of Discrimination on the grounds of Race Section 6(1) of the Acts provides:

" .... 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 (in this Act referred to as the "discriminatory grounds 'J

Section 6(2) (h) provides that:

"That they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race 'J,

Section 8(1) provides that

 “an employer shall not discriminate against an employee or prospective employee “in relation to: (among other things) ‘promotion or re-grading’

Section 74(2) provides that"....

‘victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to a complaint of discrimination made by the employee to the employer or any proceedings by a complainant’,

 Section 85A(l) of the Acts places an onus on the complainant to establish a prima facie case of treatment contrary to the Acts on the grounds of race as follows:

"Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".

The complainant asserts that she can establish facts from which it may be presumed that there has been discrimination on the race ground in relation to her and that the respondent will not be able to prove the contrary.

We say that the sudden questioning of her experience in India and the position then adopted by her Director of Nursing was direct discrimination under the Employment Equality Acts. Direct discrimination is concerned with less favourable treatment experienced by a complainant on one of the protected grounds within the Employment Equality Acts.

Ms Thomas' Irish colleague who was successful at interview, worked in settings whereby she undertook management duties in an ad hoc manner, as per the email correspondence in Appendix 9 "she would have been the charge nurse in ICU regularly in both the Mater Hospital, Beaumont Hospital and in Texas".

Ms Thomas was a unit manager in India, which the Director would now not accept, even though she was appointed to her CNM I post based on this experience.

In the case Mey v St. James Hospital 2007 DEC- E2007-016. the Complainant was a South-African and non-white who worked as a staff nurse in the Rheumatology Department from May 2001. She applied for the position of Rheumatology Clinical Nurse Manager 2. She was one of two applicants interviewed for the position. The other applicant who was Irish was successful in her application.

The Equality Officer stated that she was satisfied that the lack of transparency in the interview process along with the complainant's better qualifications and greater experience established a prima facia case of discrimination on the grounds of race and the onus therefore shifted to the respondent to prove otherwise.

In this cited case, the respondent argued that the employee had not performed well at interview and did not convey her experience in the key areas identified in the job advertisement, however, the Equality Officer was dissatisfied with the lack of transparency in the interview process as there was no breakdown in the marks allocated in two out of the three criteria used at interview. The Equality Officer held that this factor, together with the fact that the complainant was better qualified and had greater experience than the successful candidate, along with the failure of the respondent to apply objective criteria meant that the respondent was unable to shift the burden of proof.

The Equality Officer awarded compensation for loss of earning in not being appointed to the promotional post and €20,000 by way of compensation for breach of her rights to equal treatment under the Employment Equality Act 1998, as amended; and for the distress suffered as a result of the discriminatory treatment.

In Ms Thomas case, the employer accepts it did not adhere to its own eligibility criteria and based on the Directors actions clearly dismissed Ms Thomas' Indian experience. The respondent did not dismiss the experience of the successful Irish candidate. Ms Thomas also had more management and clinical exposure and experience as she had been working in Ireland since 2004. As stated, the successful candidate returned from an absence of 20 years of clinical practice in 2018.

The INMO contends that there are considerable similarities in terms of the discriminatory treatment that the complainant in the case against St. James' Hospital and the case before the Adjudication Officer today have been subjected to. In both cases we have seen less experienced and qualified applicants, of Irish origin, being offered promotional posts above the complainants.

On April 22nd, 2021, Ms Thomas received a letter from the Director of Nursing, in which she questioned why Ms Thomas, in her role as CNMl of HDU, did not attend a cardiac arrest on an inpatient ward. Ms Boylan sought a written response by April 29th.

Ms Thomas was shocked and distressed by this letter as she had a full conversation with the DoN on the morning of the actual cardiac arrest event. At no time during that conversation was Ms Thomas aware a review of her practice was being considered.

The Director’s letter was also copied to four other members of staff in St Vincent's Private Hospital. The INMO wrote to her on April 23rd, 2021, seeking clarity on a number of points including if this was a formal investigation into Ms Thomas practice, and if any other practitioner who attended the cardiac arrest had also received similar correspondence.

Ms Boylan responded on April 30th, 2021, and confirmed it was not a formal review into Ms Thomas practice and that no other practitioner who been involved in the cardiac arrest scenario had received similar correspondence.

On May 18th, 2021, the INMO responded and attached a copy of Ms Thomas response to Ms Boylan's letter of April 23rd. The INMO also highlighted concern regarding managements approach towards Ms Thomas and the fact that this issue was raised against her and no one else, and it being raised so close to her challenge of the THA appointment. We further sought confirmation that Ms Thomas' response ended the matter.

Despite attemptsto receive a response to the correspondence of May 18th, 2021, no response wasforthcoming. MsThomas then became awarethat theissuewasbeing openly discussed in thehospital and correspondencesent by the INMO was being viewed by staff not involved in thismatter.

The INMO wrote to the Director of HR on July 8th, 2021, seeking that the hospital immediately address the confidentiality breaches and reminded him that 8 weeks had passed since Ms Thomas responded to her Director of Nursing and yet no definitive response was received.

It was not until August 10th, 2021, that the hospital responded to Ms Thomas, in which her Director of Nursing confirmed no action or investigation was needed.

On October 6th, 2021, Ms Thomas lodged a detailed complaint against Ms Hammond regarding numerous incidents between Ms Hammond and Ms Thomas, of which Ms Thomas believes were in response to her lodging a complaint regarding the interview process. Ms Thomas believes she was subjected to ''victimisation" by Ms Hammond.

Ms Thomas recorded her concerns that Ms Hammond, from November 2020, immediately after Ms Thomas challenged the interview outcome, behaved towards her in a number of adverse ways (which were detailed).

However, at this stage, Ms Thomas could no longer continue in employment in SVPH, and she resigned

The respondent says that the complaint is not well-founded and, for the reasons set out below, should be rejected.

The role of Locum CNM 2, HDU was advertised on November 2020 with a closing date of November 20th, 2020. The Hospital provided the Recruitment and Appointment Policy to interviewees prior to the interview. At paragraph 1.1., it states:

The Hospital provides equality of opportunity to all candidates in an effort to select from the widest choice of candidates and minimise any skill shortages in the hospital.

At page 5 of the Policy, it states:

The Hospital retains the right to advertise all positions both internally and externally. Advertisements and the selection process will not discriminate on any of the nine grounds in the Employment Equality Acts….

On November 16th, 2020, all four candidates were shortlisted for interview and three of the candidates shortlisted, including the complainant, did not meet the eligibility criteria stated in the job advertisement. However, the hospital decided that the post presented a learning and development opportunity for all applicants and that this opportunity should take precedence over strict adherence to the Policy.

Interviews were held on November 25th, 2020, and all candidates were asked the same interview questions. The interview panel awarded marks to candidates under the headings: Interview Rating; Relevant Qualification Rating; and Relevant Experience Rating. (Detail provided)

The highest scoring candidate was selected for the role of CNM 2.

Itissubmittedthattheaboveprocessisfair,andobjective and the assertions made by the complainant about the successful candidates are baseless as she is not privy to the candidates’ CV. (Further detail was submitted on the complainant’s score). Ms Thomas was placed second in the competition.

She did not meet the criteria of five years post registration experience in an HDU/ITU (She did have 3.5 years of critical care experience). Furthermore, the successful applicant was required to have a recognised qualification within the specialised area. Ms Thomas did not provide proof of completion of any such course.

On  November 26th, 2020, Ms Hammond informed all candidates of the outcome of the interviews and offered them the opportunity to obtain feedback.

The following day, Ms Thomas attended a meeting with Ms Hammond during which constructive feedback was provided to Ms Thomas. Ms Hammond informed Ms Thomas that she did a very good interview and provided examples of how she might improve.   

On November 27th 2020, the complainant informed the Director ofNursing andherAssistantDirectorofNursingbyletterofherconcernsaboutthe competition and stated her belief that the highest scoring candidateshouldnothavebeenshortlistedforinterviewhavingregardtotheeligibility criterialistedinthejobadvertisement.MsThomasraisedanobjectiontotheoutcome ofthecompetitionandrequestedaninvestigationintothecompetitionprocess.

On the morning of November 30th, 2020, Ms Hammond was informed that Ms Thomas had been publicly discussing her concerns about the interview process and its outcome with other members of staff in the Hospital. Ms Hammond privately asked Ms Thomas to be respectful towards fellow employees and not to discuss the competition publicly.

On December 9th, 2020, the INMO informed Ms Boylan by email that Ms Thomas had been penalised professionally and financially by virtue of the Hospital not adhering to the eligibilitycriteriaforthecompetition.Itsoughttopostponetheappointment of the successful candidate pending an investigation into the process.

On December 17th and 18th 2020, Ms Boylan informed Ms Thomas and her union that in carrying out any promotion competition, the Hospital is mindful of its responsibilities under the Acts and the principles and procedures outlined in the relevant policy.

She repeated that the competition had been a development opportunity for all applicants and this opportunity should take precedence over strict adherence to the policy and that she was satisfied that the process was fair and objective.

On 9 February 2021, Ms Boylan informed the complainant that she would like to speak about the CNM 2 interview. On 11 February 2021, the complainant agreed to do so and be accompanied by her union and this meeting took place on February 24th.

At this meeting, Ms Boylan explained that she did not have evidence that the complainant met the criteria listed in the job advertisement. Ms Boylan outlined that Ms Thomas did not complete an ICU course and that she needed clarification as to whether Ms Thomas managed an ICU when she was three years qualified which would be unusual.

Ms Thomas explained that she had the requisite management experience and that she would send a job description relating to her previous employment in India to prove this.

Mr. Hoolan (INMO) asked whether Ms Thomas would be offered the position if she provided evidence of her previous experience. Ms Boylan stated that this would be reviewed once Ms Thomas provided the relevant evidence and agreed to postpone the appointment to afford Ms Thomas the opportunity to provide such further information. Ms Thomas did not provide any further information.

On25February2021,MsBoylaninformedthe complainantthatameeting would be reconvened between them once Ms Thomas provided the relevant evidence of her previous experience.On February 26th, 2021, Mr. Hoolan confirmed that Ms Thomas would seek to resolve her grievance locally.

An appointment was not made to the role of CNM 2. The vacancy no longer exists as the current post holder decided to stay in her position. The complainant resigned from her employment on 8 October 2021.

Section 85A (1) of the Acts provides as follows:

Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

The legal burden of proof is on Ms Thomas in the first instance to establish a prima facie case of discrimination or victimisation on the ground of race. It is only if she establishes this prima facie claim that the legal burden of proof shifts to the Hospital.

Ms Thomas has failed to make out a prima facie case of discrimination. In Dr Teresa Mitchell v The Southern Health Board (Cork University Hospital) [2001] ELR 201 (Appendix 21), the Equality Tribunal considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out. It stated 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 was no infringement of the principle of equal treatment.

In Minaguchi v Ray Byrne, t/a Wineport Lakeshore Restaurant DEC-E/2002/, the Equality Officer stated as follows:

‘It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

That s/he is covered by the relevant discriminatory ground(s).

That s/he has been subjected to specific treatments; and

That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.’

In Mitchell, the Labour Court went on to say that:

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 Melbury Developments Ltd v Valpeters EDA0917the Labour Court, in considering allegations of discrimination on the ground of race, held as follows:

Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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

In the case of Graham Anthony & Co Limited v Margetts [2003] EDA038(the Labour Court stated:

‘The mere fact that the complainant falls within one of the 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

In the recent WRC case of Nikki Spillane v Jazz Pharmaceuticals Ireland Ltd ADJ- 00031356 (wherein the claimant contended that she had been discriminated against on the ground of gender, the Adjudication Officer noted:

‘In order to demonstrate that the complainant has received less favourable treatment and that the less favourable treatment arouse from her age, gender, civil status religion and/or race, the complainant must first establish a prima facie case of discrimination. Prima facia has been held in the Labour Court in Rotunda Hospital v Gleeson [DDE003/200] to be ‘Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred’.

The complainant cannot discharge the evidential burden of proof necessary to succeed in her claim as against the Hospital. In particular:

(a)            She has made assertions which are unsupported by evidence. She has gone no further than stating that she was discriminated against on the grounds of race in the course of a competition and that she is being victimised for opposing discrimination. This is insufficient to discharge the burden of proof.

(b)            She has not provided any details of a comparator that would allow an assessment as to whether the test in Minaguchi is met.

(c)            It is highly significant that Ms Thomas never alleged that the reason she had not been appointed to the post of CNM 2 was due to her race. On 6 October 2021, Ms Thomas lodged a complaint against Ms Hammond under the Hospital’s grievance procedure.

This complaint was one of bullying, not a complaint of discrimination on the ground of race or victimisation for opposing discrimination

Section 6 of the Acts 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) ….

The relevant ground in this case is race. Section 6(2)(h) of the Acts defines the race ground in the following terms: that they are of different race, colour, nationality or ethnic origin’

In A Worker v Mid-Western Health Board 1996 ELR 1the Labour Court determined that to establish discrimination, a complainant must show both less favourable treatment and that such treatment arises from the sex (or, in this case, the race) of the complainant.

Even if it is accepted that there is a prima facie case of discrimination, Ms Thomas has adduced no evidence of any relationship or link between her race and any actions by the Hospital or its employees in relation to her. Ms Thomas has also not provided any information regarding a comparator.

In Client Logic, the Labour Court held that it would not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.

Ms Thomas has not provided any evidence of unfairness in the selection process. The interview process was based on objective criteria and the outcome of the process cannot be said to be irrational.

Regarding the victimisation complaint, in the case of A Complainant v A Department Store DEC-E2002-017the Equality Officer held that in a claim of victimisation, a complainant must demonstrate both that the behaviour complained of is capable of constituting victimisation and also, that it arose as a consequence of her having done one or more of the things envisaged in section 74(2).

Hence, the onus is on Ms Thomas to show that firstly she has been subjected to behaviour, which is capable of constituting victimisation, and secondly that this behaviour resulted from her having done one or more of the actions envisaged in section 74(2).

The complainant has not demonstrated that she has been victimised or even that she has done one or more of the acts envisaged in section 74(2) of the Acts. Furthermore, Ms Thomas has identified her concerns as being of an interpersonal and/or bullying nature. It is submitted that if any adverse treatment was suffered by her as a result of making complaints regarding the interview process (which is denied), this could not fall within the definition of victimisation in section 74(2) of the Acts.

She has not discharged the burden that falls on her under the Acts to adduce prima facie facts in relation to her complaint.

The facts that have been provided suggest that there has been no discrimination against Ms Thomas on the ground of race or on any other ground protected under the Acts. Ms Thomas has also failed to demonstrate that she has been victimised under the Acts.

As can be seen above the complaint has its roots in the conduct of promotional interview in the respondent hospital.

The sequence of events is worth summarising. The interview took place on November 25th, 2020, the complainant was advised the following day that she had not been successful.

On the day after that, the complainant had a meeting with one of the interview board members and told her that she had been disappointed about the unfairness of the whole competition. She questioned whether the successful candidates have been eligible to compete and asserted that the outcome was in violation of the hospitals own recruitment an appointment policy.

She also said that the interview board had not followed ‘a fair procedure’. This continued to be the main thrust of the complainant’s grievance up until the meeting of February 21st.

She followed this up with a letter on November 11th  which was submitted in evidence, and which repeated the points summarised above.

Specifically, she claimed that the competition had not been held not in accordance with the hospital’s recruitment and appointment policy, and her basis for doing so is well set out in the submissions above.

There was no reference in this letter or indeed in subsequent correspondence on December 9th and 21st from her trade union to any suggestion of discrimination.

This first appeared following a meeting between the Director of Nursing (who had not been present at the interview) on February 24th 2021 but who appeared to the complainant to question the quality of her experience while working in India even though this had not been challenged when she applied for her post in the hospital.

The issue that arises is whether these comments, made some three months later by a person who had no apparent role in the interview process can be said to create an inference of discrimination.

Contrary to the suggestion by the respondent this delay in raising an issue of discrimination is not, of itself, any barrier to the complainant’s case.

It is easy enough to imagine situations where a person only becomes aware of any less favourable treatment they have received being attributable to one of the protected grounds well after the event in question.  Those who breach the law in this regard may not openly advertise that they are doing so, and the grounds for making a complaint may only emerge later, as is being alleged in this case.

It is of some, but not necessarily decisive interest that the complainant did not identify a possible discriminatory element earlier. As is clear from the submissions her objection related exclusively to the outcome and the qualifications of the successful candidate.

Specifically, her primary concern had been related to the eligibility of the successful candidate to compete although it seems that other candidates were strictly not eligible to compete (although this is a matter of controversy in relation to the complainant to which I return below).

The respondent says that it did not apply the strict terms of its policy and that all the candidates were invited to interview as a career development step, so the issue of eligibility is somewhat irrelevant.

So, while in principle, the delay in uncovering facts which may ground a complaint may only arise after a period of time, in order to ground a prima facie case, they must meet the criteria set out in the case law (which has been comprehensively set out in the respondent’s submission above).

For convenience of the reader, I set out again the extract from Mitchell v The Southern Health Board (Cork University Hospital) [2001] ELR 201in which the evidential burden which a complainant must discharge before a prima facie case of discrimination can be made out was stated.  

It stated that a complainant 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 was no infringement of the principle of equal treatment’.

In this case, the ‘fact’ on which the complainant’s entire case turns is the comments made by the Director of Nursing at the meeting on February 21st.

In its submission the complainant’s union stated that.

 ‘At this meeting, the Director of Nursing now questioned Ms Thomas' management experience in India, which had not been raised when she applied in April 2019 for her CNMl post in the Hospital. Her management experience in India was acknowledged and accepted by St Vincent's when appointing her to post.

In the hospital minutes of the meeting of February 24th, 2021, Ms Boylan states, in relation to Ms Thomas Indian experience the following.

"The unit is high intense, and title is not a CNM, find it difficult to equate running the HDU Unit. I am not comfortable to equate to the role. Title [sic] could have gone down on their CV.

This is one of several occasions where the Director of Nursing expresses her opinion (‘I am not comfortable to equate.’) that the complainant’s previous experience was not at the same level as that required for the position. On the complainant’s behalf her union official is noted as having opined that while the CNM grade had not existed in India the relevant position there was ‘very comparable’.

So, this is an exchange of views and a discussion about the relative status of two management positions, one in Ireland and the other in India which may appear somewhat academic given that it had not prevented the complainant’s candidacy proceeding. So far there is nothing to suggest a breach of the Equality Acts.

The further suggestion that the Director’s opinion on this aspect of the matter is a ‘fact’, and that it is one that influenced an interview board of which she had not been a member some four months earlier is somewhat fanciful and a step into the implausible.

In the first place there is no evidence that the interview board was aware of the Director’s view, or more importantly shared it, or regarded it to be in any way persuasive or acted on it in making its decision.

More significantly again, this is clearly a difference of opinion (or at least a discussion about whether such a difference existed) about the status of a person’s professional experience.

The fact that the experience being questioned took place in a different country does not, on these facts, bring it within the ambit of less favourable treatment on grounds of race. Otherwise, by way of example, it would be difficult for the relevant authorities to have a discussion on the mutual recognition of professional qualifications based on an evaluation of training standards etc. (although that is not in issue here) without offending the Act.

But whether standards of training, professional practice etc. are comparable in different national settings is an entirely valid subject for discussion and it is possible to do so without raising a question of unlawful discrimination.

For the same reason, it is possible to question in good faith a person’s experience (and even to be mistaken about it) also without necessarily giving rise to less favourable treatment on the race or nationality ground.

In the context of this complaint it is even more decisive, as already noted, that no argument has been advanced that the Director’s opinion held any influence with the interview board.

Therefore, this is several stages removed from the necessary proximity required; first of all, it is not necessarily an indication of a firm view held by the Director, but even if it were, there is no suggestion that it had any bearing on the decisions of the interview board.

The standard required to establish a prima facie case is relatively low. It is not the same as having to establish that the complaint is likely to succeed; merely that facts have been presented that are of sufficient significance to raise a presumption of discrimination.

A prima facie case establishes three things.

That the complainant is covered by the relevant discriminatory grounds,

There was specific treatment by the respondent,

The treatment was less favourable that treatment that was or would have been afforded to another person (the comparator) in similar circumstances.

However, as had been held in, for example in Marcin Wilcocki v Alliance PLC (DEC-S2016-032), there must be facts of ‘sufficient significance’ to raise a presumption of discrimination, and also as submitted above by the respondent in A Worker v Mid-Western Health Board 1996 ELR 1.

Thus, it is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists, or the acts are transparently attributable to a non-discriminatory cause.

Other authorities cited in the submission by the respondent are relevant in this consideration of the matter, specifically Melbury Developments Ltd v Valpeters EDA0917the Labour Court, where in considering allegations of discrimination on the ground of race, it was held as follows:

Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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

In the case of Graham Anthony & Co Limited v Margetts [2003] EDA038(the Labour Court stated:

‘The mere fact that the complainant falls within one of the 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

In this case, the ‘facts’ (i.e., the questions raised by the Director of Nursing, a non-member of the interview Board) on which the complainant relies are at such a degree of remoteness to the alleged act of unfavourable treatment that they do not meet the test for a prima facie case.

Implausible as they already are as ‘facts’ for the purposes of the tests, (they are little more than the expression of an opinion, or a query) the complainant has not connected these comments of the Director of Nursing in any way to the decisions of the interview board or specifically established any connection between and the actions (or opinions) of the interview board members.

They therefore fall to be considered within the ambit of the dicta in Melbury above of her complaint being based on ‘mere speculation or assertions, unsupported by evidence’, and which ‘cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.’

Accordingly, I find that she has not made out a prima facie case and the complaint under the Employment Equality Act is not well-founded.

Both parties made submissions in relation to alleged victimisation, although this was not part of the formal complaint made by the complainant or listed for hearing.

It arose from a letter received on April 22nd, 2021, from the Director of Nursing, in which the Director questioned why Ms Thomas, in her role as CNMl of HDU, had not attended to a cardiac arrest on an inpatient ward and sought a written response by April 29th. 

The complainant’s union wrote on April 23rd raising a number of concerns and again on May 18th in which it rather tentatively linked the events associated with the promotional competition and these actions of the Director, but somewhat surprisingly having raised such an innuendo immediately backed off it by expressing the hope that the response submitted by the complainant would end the matter.

The hospital, after some delay eventually confirmed that no further action was being taken in the matter and there it ended.

This suggests that while the union wished to flag a possible issue of penalisation it had no intention of doing anything beyond this (and did not do so) and it is not necessary for me to do so as it does not form part of the formal complaint to the WRC.

The complainant has not made out a prima facie case and so the complaint is not well founded and it is not upheld.

For the reasons fully set out above complaint CA-00044302-001 is not well founded and it fails.

Discrimination, prima facie case.