Complainant

Respondent

Parties

Paulinus Obinwanne  Okafor

Health Service Executive Hse

Representatives

Shaun Boylan B.L instructed by Sean Ormonde & Co., Solicitors

 Employee Relations Department

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-00053125-001

06/10/2022

Thecomplainant is aNigerianNationalemployedwiththerespondent sinceinoraround 2004.He holds relevant undergraduate and master’s degrees. From 2014 he worked as a senior medical scientist in blood transfusion and this post became full-time in or around 2017.This post was also held byMsKC whoisIrish.

However, at all material times KC did not have a relevant master’s degree.

In 2021 senior medical scientists were informed that a member from each department would be promoted to chief medical scientist. By virtue of his qualifications and position the complainant was entitled to the promotion. The respondent acknowledges that a relevant master’s degree was necessary to qualify for the promotion.

Despite the requirements for the post the complainant was initially passed over for promotion in favour of KC, despite the latter not possessing the necessary master’s qualification.

The complainant explained his eligibility on several occasions to the respondent.Havingbeenpassedover,and told that the post was to be advertised, he was later appointedinareversalofthedecision.

Itissubmittedthatthis treatmentamountedtoa prima facie case of discriminationontheground of race and the reasons offered by the respondentdonot amounttoa completedissonance between the offending behaviour andtheprotectedground.

On the contrary the respondent has admitted that it assumed about the complainant in respect of being in overall charge, but that assumption was, by its nature, the result of inherent bias. Presumably this assumption was not made in respect of KC.

It is also submitted that it is not credible to assert that it was not apparent that thecomplainant was not eligiblefortheposition wherehewas already in theemploy of the respondent.In addition, the complainant highlighted his eligibility on several occasions.

Despite this the respondent initially chose to pass him over in favour of an Irish candidate that it knew was ineligible.It is submitted that, even on therespondent’sownaccountitsactionsdiscriminatedagainstthecomplainant.

In 2017, the complainant was appointed to the position of full-time senior medical scientist in the blood transfusion department at our Lady’s Hospital, Navan. In addition, he had added responsibility as IT-coordinator for the entire of the pathology unit.

In June 2022 he was passed over for promotion to the role of chief medical scientist in circumstances where three Irish colleagues in the role of senior medical scientist were promoted.

Of particular significance was the decision of the respondent to promote KC to the role of chief medical scientist in blood transfusion despite the fact that she did not possess a Master’s degree. and was promoted ahead of the complainant on the condition that she obtained the qualification within five years.

On 20th July 2022 he served a complaint on it by way of form ES. 1 alleging that he had been discriminated against on grounds of race.

On August 4th, 2022, the respondent rescinded the offer to KC and offered the position to the complainant. A form ES. 2 was received by the complainant on or about 18th August 2022.

Although the complainant was promoted, this was only after two months of having to deal with processes, being forced to make his case and generally deal with matters not applied to the other successful candidates.

In July 2018 the complainant’s part-time post as senior medical scientist in the blood transfusion department was upgraded to permanent and full-time with added responsibility as IT-coordinator for the entire pathology department.

In 2021 senior medical scientists were informed at a quality management meeting that a senior medical scientist in each department would be promoted to the position of chief medical scientist. As the employees were already carrying out the functions of this role it was not required or intended that there would be any competition for the positions.

The complainant expected to be informed as to the formalities for promotion. However, he heard nothing from the respondent and became anxious that he had been passed over for promotion on April 29th, 2022, when three of his senior medical scientist colleagues from other departments, all of whom are Irish, commenced celebrating that they had signed the relevant contracts.

On May 3rd, 2022, the complainant was informed that his colleague and fellow senior medical scientist, KC, also Irish, had been nominated for the post. However, he was further informed that Human Resources (HR) had rejected the nomination due to KC not having a master’s degree.

He was told that it was the intention of therespondenttoadvertisetheposition.Hecomplainedtohissupervisorthatthiswas completely different to how the other senior medical scientists had been treated in obtaining their roles.

In the course of a meeting on the May 6th, 2022, it was acknowledged that the complainant was listed as joint blood transfusion lead with KC. In this meeting he was told that he may be entitled to the promotion, and he was asked to provide for consideration a portfolio of roles and responsibilities undertaken as senior medical scientist. None of the other senior medical scientists were asked to carry out such an exercise.

On June 8th, 2022, the complainant was informed that the chief medical scientist in blood transfusion post was to be given to KC on condition that she obtain the requisite master’s degree within five years. The complainant said that he had been discriminated against but was informed that the decision was final.

The complainant complained to human resources (HR) that he did not agree with the decision and was later assured that his complaint was passed to the HR manager, but  he  did not receive any response to his complaint and therefore completed and formally served a complaint of discrimination under the Employment Equality Acts by way of the ES. 1.

On August 2nd, 2022, the complainant was requested to attend a meeting with HR office and at this meeting the HR manager advised that the complainant  was in fact entitled to the promotion of chief medical scientist and offered the post to him.

At this time the complainant said that he did not want the post due to the effects of having protested over his treatment for two months but without being heard. Both the complainant’s supervisor and the HR manager apologised and tried to persuade him to accept the role. They claimed it was not a case of discrimination but one of oversight. The complainant replied that he was not in a position to give a reply to the offer at that time but would need to consider the matter.

On August 4th, 2022, the complainant received a formal offer letter (by e-mail) for the post and the following day the complainant sought a formal response to the ES. 1 and stated that he did not believe that the facts relating to his record and qualifications had only just come to light because he raised them previously.

However, on August 17th, 2022, he accepted the post.

The following day the respondent replied to the ES1 saying that.

“[KC] was nominated for the role of Chief Medical Scientist on assumption that she was overall in charge of the Blood Transfusion Service…

On return from leave you were not consulted as it was not apparent that you were deemed the eligible person for the role at that time as it was not apparent that you were overall in charge of the Blood Transfusion Department.”              [Emphasis added]

On September 5th, 2022,thecomplainant received asignedcopyofhisnewcontract back dated to 21st March 2022.

Thecomplainant does notacceptthereasonsgivenbytherespondentforitsactions.

The facts relied upon by it were known and readily available at the time the promotions were initially authorised. The complainant was fully qualified for the position and more qualified than KC to whom the job was originally offered. The only difference between the complainant and the other candidates (save for KC who was also less qualified) was and is his nationality.

In terms of a comparator, if necessary, the complainant will, if necessary, rely on the circumstances of the complainant’s colleague KC. At the material time KC and the complainant were senior medical scientists in blood transfusion. They therefore did “like work” for the purposes of the 1998 Act. However, KC is Irish and, despite not having the requisite qualifications (which the complainant did hold) was preferred for promotion over the complainant.

In practical terms, issues related to the burden of proof were set out in the case of Minaguchi v Wineport Lakeshore Restaurant [DEC-E2002-020] as arequirement for a complainant to prove aprima facie case after which the burden would shift to a respondent.

The steps to establishing a prima facie case were set out in Minaguchi and can be summarised as follows:

i.                    The complainant is a person with the relevant characteristic that brings them within the discriminatory ground.

ii.                  The complainant has been subjected to specific treatment.

iii.                The treatment in question is less favourable than that experienced or that would be experienced by a person that does not share relevant discriminatory ground and characteristic.

The complainant is a person with a different nationality to KC. He was initially subjected to the specific treatment of being passed over for promotion. This treatment was manifestly less favourable than that experienced by KC who does not share the complainant ’s nationality.

It is therefore submitted that the facts summarised above and or the evidence to be adduced at oral hearing establish a prima facie case of discrimination on the ground of race such as to shift the burden of proof to the respondent.

As noted in the Labour Court decision of Kieran McCarthy v Cork City Council [EDA0821], the discriminating motives of a respondent are rarely overt. For this reason, the Labour Court found that where the primary facts relied on are proven, the deciding body is entitled to infer from those facts the argument contended for. In addition, the Court held as follows:

‘It is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts’.

The complainant submits that it is well within the range of inferences that can be drawn from the facts and evidence that that the respondent’s motivation for passing him over for promotion was at the very least in part motivated by the difference in “race, colour, nationality or ethnic or national origins” between the complainant and other candidates including KC.

In light of the foregoing the complainant submits it is clear that the onus is on the respondent to offer sufficient evidence to show that “race, colour, nationality or ethnic or national origins” played no role whatsoever in the motivation behind of the respondent to initially promote KC over the complainant. This was made clear by the Labour Court in the case of Niscayah Limited v Rachel McCarthy [EDA1328] when it held as follows:

‘Where a prima facie case is made out the onus shifts to the respondent to prove the absence of discrimination. This requires the respondent to show a complete dissonancebetween the protected characteristic relied upon … and the impugned act or omission alleged to constitute discrimination. In Wong v Igen Ltd and others [2005] IRLR 258 (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.’

[Emphasis added]

In the ES. 2 the respondent openly acknowledged that it made the (incorrect) “assumption” that the complainant was not in overall charge such as would have entitled him to promotion. However, no grounds or explanation are offered for that assumption. In those circumstances it is submitted that this is not sufficient to rebut the case put forward by the complainant.

Furthermore, it is submitted, based on the above case law, that the “assumption” in this case, as with all assumptions, was made on the basis of an inherent bias. It is submitted that the respondent has failed to show a complete dissonance between that bias and the protected ground.

The respondent also stated that it was not “apparent” that the complainant was the eligible person for promotion or the person in overall charge. The complainant submits that at all stages in raising the issue he made the relevant parties within the respondent aware of why he was the eligible person. On those grounds alone it should have been “apparent” to the respondent.

Furthermore, the respondent was at all times on notice of the complainant ’s qualifications and position have initially hired him and having moved him into the role of senior medical scientist in blood transfusion. The complainant therefore submits that if it was not “apparent” then that was because the respondent failed to make it so.

This was in marked contrast to the treatment of KC where the deficiency in her qualifications was readily apparent to the respondent, which nonetheless (initially) agreed to promote her.

In the alternative to the above it is submitted that the “assumption” made by the respondent, coupled with its failure to make “apparent” information that it did or should have had notice of, amounted to a policy that had the effect of discriminating against the complainant.

It was precisely to avoid such scenarios as that experienced by the complainant that in the case of A Technology Company v A worker [EDA0714] the Labour Court held as follows:

“The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discrimination motive, in the absence of independent corroboration, must be approached with caution”

More overtly the manifest effect of the actions of the respondent in relying on assumptions and what it claims was “apparent” discriminated against the complainant  and or resulted in his discrimination on grounds of race.

The complainant Mr. Paulinus Obinwanne Okafor, submitted a complaint on October 6th, 2022,  claiming that he has been discriminated against on the grounds of his gender and race by not promoting him and in relation to his terms and conditions of employment, with the most recent date of discrimination set out as  August 3rd, 2022.

The respondentsays that no discriminationtook place.

Thecomplainant waspromoted totheroleofChief Medical Scientist with full retrospection to March 21st, 2022.There is no substance to the allegation that his female, Irish colleague with lesser qualificationswas promoted ahead ofhim; she was not promoted.

It is a fact that a complaint raised by the complainant's female, Irish colleague resulted in her being considered for the promotional role rather than the complainant, not her gender nor her race. However, it must be restated that this employee was notpromoted to the role, and it was the complainant who was duly promoted to the role when it was deemed that he was entitled to same.

The complainant was initially employed as a Basic Grade Medical Scientist based at Our Lady's Hospital, Navan from March 1st 2004. With effectfrom7July2014thecomplainantwastemporarilypromoted toaSenior Medical Scientist role in Blood Transfusion in a part-time capacity; this was by way of a local competition.

There was a full-time position of Senior MedicalScientistinBloodTransfusion beingcovered bytwostaffmembersin a job-sharing capacity.The part-time promotion of the complainantwas due to a colleague JM's absence on long term sick leave and the requirement to have the post covered full-time.

The complainant covered the role part-time alongside his colleague, KC and continued in his substantive basic grade role for the remainder of his hours.

In 2018 the part-time senior post became permanently vacant due to the resignation of the substantive post holder JM who had been on long term sick leave. At this time local management applied to have the position approved as full-time and on 9 July 2018 the complainant was promoted to the Senior Medical Scientist role in Blood Transfusion/IT in a permanent full-time capacity.

As this permanent positionwasnowfull-timeandvacant,itshould havebeenadvertised, however, adecision wasmadelocallythatthecomplainant should beconfirmed inthe rolewithout needforinterview ashehadbeeninitfouryearsalbeitina part-timecapacity.

His colleague, KC, continued working as a Senior Medical Scientist also in Blood Transfusion in a part-time capacity.

In 2003, the then Health Service Employers Agency issued a letter to all services in relation to the "Implementation of Report of the Expert Group on Medical Laboratory Technician/Technologist Grades (now Medical Scientists)". This letter advised that agreement had been reached with the Medical Laboratory Scientist Association regarding some residual elements of the original report and it set out the details of that agreement.

One element of this agreement was the filling of Chief Medical Scientist posts in existing departments. The agreement confirmed that an individual Senior Medical Scientist in overall charge of a department should be upgraded to Chief Medical Scientist without recourse to a confined competition. The upgrade was subject to:

(i)                The individual involved holding the qualifications necessary for appointment as Chief Medical Scientist as set out by the Department of Health and Children. Where the requisite qualifications are not held the post falls to be filled by open competition among eligible staff and.

(ii)              A position of Chief Medical Scientist is merited in accordance with the revised grading structure i.e., the Department has 6 whole time equivalents or more Medical Scientist staff employed.

In 2021 OLHN was in a position to implement this agreement as they now met the criteria in relation to staffing levels and received approval to regrade four Senior Medical Scientist positions to that of Chief Medical Scientist in accordance with the Report of the Expert Group on Medical Laboratory Technician/Technologist Grades. These four posts were in the areas of Chemical Biochemistry, Haematology, Blood Transfusion and Microbiology. 

The local HR Department in conjunction with the Laboratory Manager, commenced the process of identifying the individuals within those roles and assess if they were in overall charge of the department, had the required qualifications and eligible for appointment in accordance with the agreement.

TherewasnoissuewiththerolesinMicrobiology,Chemical Biochemistryor Haematology as theSenior Medical Scientists within those departments met the criteria in full for the upgrading.

However, KC was thedepartment lead forBlood Transfusion, butshedid notpossess the required qualifications for the Chief role and therefore was not eligible for promotion.The manager discussed this with KC and advised that in line with the agreement, the post would now be advertised by way of a confined competition.

On April 1st, 2022, his manager sent an email to HR at the hospital to advise the names of the three appointees for the roles in Microbiology, Chemical Biochemistry and Haematology. In that email he also advised that the post in Blood Transfusion would need to go forward for a confined competition as KC did not hold the required qualification. He identified two Senior Medical Scientists who were eligible to apply for the competition and named them; they were the complainant and a colleague, OD.

InMay2022 thecomplainant returned from annual leavetodiscover thatthe upgradeshadbeenimplementedforthethreestaffintheotherdepartments.

It must be acknowledged at this juncture that the complainant was not consulted or informed that these upgrades were approved or indeed the status of the role within Blood Transfusion as he was on annual leave at that time, nor was he advised of same on his return. Management at the hospital acknowledged their error and apologised to the complainant for this oversight.

Once the complainant learned of the promotions, he immediately raised the issue with his manager who apologised for the oversight in not advising him regarding same and also advised that KC did notqualify for therole and the post was going to a confined competition where he could apply for same.

At this point OD was also on notice that the post was being filled by way of confined competition and she was also eligible to apply. 

The complainant was not satisfied with this position and advised he would seek advice. It was his view that given his qualifications and his senior role he was entitled to appointment without competition. The manager advised that the agreement set out that it was only the department lead who was eligible for upgrade and if that person was not qualified the agreement did not allow for the next most senior to be appointed; it was clear the post must go to confined competition.

Parallel to the complainant's issue, both KC and OD separately raised complaints with HR in relation to the filling of the position. The complainant from OD related to the fact that if the complainant was appointed, she would potentially not have an opportunity to compete for the post at interview which she saw as her entitlement.

KCwascompletelydissatisfiedwiththeoverallprocessasitrelateddirectlyto her; shefelt as she had been thedepartment lead since2005,sheshould begiven thepost if she committed to pursuing her Master’s Degree particularly in recognition of heryearsofservice.

Managementheldits positionthatshewasnotqualified andcouldnotbeappointed; theyadvisedthatshecouldseekadviceandrevert if she had any additional information, they were not aware of, they would consider it.KC advised management that in other hospitals throughout the country where the department lead did not hold the required qualification, discretion was applied to them to allow them to pursue the Master’s Degree. ManagementwasnowonnoticethatKChadalegitimateclaimwhichneeded to be dealt with, met herandonthebasisoftheprecedent that had been set in other hospitals throughout the country accepted that she should be considered for the upgrade to Chief.

The details had not been set down in relationtowhethertheappointmentwouldbefollowingsuccessfulcompletion oftheMaster’s Degreeorotherwise, but thecomplainant was advised that KC was now being considered for the role.

Whilst he agreed that KC was the department lead, he maintained his position that he was the eligible employee as he held the required qualification and was appointed part-time Senior in Blood Transfusion essentially deeming him also the department lead. He was requested to set out his qualifications and role to him to evaluate if that claim was correct.

The complainant also raised the issue the issue with local management by way of a Form ES.2 Equal Status Acts 2000 - 2015 in July 2022.

A full review of the entire process relating to KC and the complainant commenced. Records held locally were checked which verified that on permanent appointment to the senior role in 2018, the complainant was appointed part-time (0.5 WTE) to Blood Transfusion essentially sharing the department lead role with KC. This assessment of his role, contract and qualifications deemed him eligible in accordance with the agreement. The complainant was advised of this July 2022.

On August 3rd, 2022, management met with KC to advise her of their findings following the review. They confirmed that her appointment was not proceeding given the information they were now in possession of which confirmed that the complainant was the appropriate appointee to the role of Chief Medical Scientist.

Byletterdated August 3rd, 2022, theHR Manager wrote tothecomplainant inresponsetotheForm ES.2andconfirmed thatfollowing their investigationhe was theeligible candidate for theroleasChief Medical Scientist.

It was confirmed in the same correspondence that the complainant had agreed to consider the offer and he would advise of his decision to accept the offer the following week. The complainant accepted the offer and was retrospectively appointed with effect from 21 March 2022.

Section 85A of the Employment Equality Acts governs the burden of proof in the context of establishing a prima facie case of discrimination. Section 85A (1) states that:

"Where in any proceedings facts are established by or on behalf of the 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 Labour Court considered the extent of the evidential burden that a complainant must discharge before a prima facie case of discrimination can be made out in Teresa Mitchell v Southern Health Board [2001} ELR 201. In that case it was held that the first requirement is that the complainant must establish fact from which it may be presumed that the principle of equal treatment has not been applied to them.

This indicates that the complainant must prove, on the balance of probabilities, the primary facts on which he will seek to rely in raising a presumption of unlawful discrimination. It is submitted that it is only if the primary facts are established and are regarded as 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. There has been no evidence presented by the complainant that KC was chosen as she was of a different gender and race; he was the person appointed to the role not KC.

It isalsosubmitted that thecomplainanthasnot proven anyfactsfrom which itmay bepresumed that therehasbeendiscrimination.

As set out in Melbury Developments Ltd v Valpeters [2010] ELR 64, "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. "

The complainant in this case has failed to establish the specific treatment that has allegedly taken place and has not provided any evidence that this alleged treatment was less favourable than treatment afforded to a colleague of a different race and gender. The complainant states that his colleague KC was nominated for the role which suggests she was being considered for appointment. However, he further sets out on his referral to the WRC that management "retrieved" the appointment. This is conflicting information particularly as these are the facts on which he seeks to rely to ground his claim of discrimination.

The fact is that the complainant's female, Irish colleague, KC, was being considered as the eligible candidate for promotion based on her own claim that she was the department lead and precedent had been set around the country to allow her to obtain the promotion while pursuing the relevant qualifications, it was in no way related to her gender or race.

It is also a fact that following a management review she was not appointed to the role and was not provided with any enhanced terms and conditions of employment by comparison to the complainant who has been promoted and provided with the enhanced terms and conditions relevant to the Chief role. (Emphasis added)

The complainant’s information is incorrect, and he seeks to rely on inaccurate allegations to ground his claim.

Thecomplainant hasnot provided facts from whichitmaybepresumed that hehas been discriminated against.Asstated, theevents that took place were complex in nature and once management undertook a full review, the complainant was duly appointed. The HSE contend that there is no less favourable treatment of the complainant and in that context the claim of discriminationhasno validity, ismisconceived, and mustfail.

Not only that but the absence of any facts from the complainant in grounding his complaint does not meet the prima facie test as required under Section 85A of the Employment Equality Acts.

The complainant has set out on his referral form that he has been discriminated against due to his race and gender by not promoting him. Within this complaint and in the absence of requisite evidence or detail, management reject outright the assertion that the complainant was unlawfully discriminated against by virtue of his race and gender.

Heseekstostrengthen hisclaimofdiscriminationasitrelatesto theappointmentofhiscolleagues promotedtoChiefinotherthreerolesasthey are alsofemaleandIrish.

They were appointed to the Chief roles based on their eligibility only and their appointments do not form any basis for a claim of gender or race discrimination. The fact is that these staff members were eligible for appointment based on the agreement and to suggest that it was due to their gender or race is incorrect and there is simply no validity to this claim.

This was a very complex situation where local management were also on notice of a complaint by OD. She was of the view she was being denied the opportunity to compete for the Chief role by virtue of the issues that were arising with her colleagues and their respective claims for the role.

This complex situation was further compounded with the issue of the departmentlead,KCnotpossessingtherequiredqualification forpromotionin accordance with theagreement.

Theconsideration to promote her was not in any way related to her race or her gender.The consideration to appoint her was made as a result of a complaint submitted by KC to management where she put them on notice that precedent had been set around the country where the same situation had occurred, and management felt theyhad to follow that precedent.

KChad beenintheroleofSeniorMedical Scientist since2005 by comparison tothecomplainant who hadonlybeeninasenior rolesince2014. Added to this complex situation was the oversight by management that the complainant, on permanent appointment to the Senior role in 2018,was appointed inapart-time capacity to Blood Transfusion whichifit was known at the outset would have certainly impacted the decisions that were taken by management.

His manager acknowledged this with the complainant on many occasions and apologised for this oversight. None of the actions taken by management were based on the gender or race of either employee.

The consideration for appointment of the complainant's colleague was incorrect but that is, as stated, acknowledged by management. However, it must be noted that she was not appointed to the role nor was the promotion "retrieved" as is set out in the complainant's referral form. Once management had conducted their review and realised the complainant was entitled to the promotion, he was duly appointed, and this appointment was retrospectively applied to the same appointment date as his colleagues in the three other Chief roles.

It should also be highlighted that the complainant was assigned to Blood Transfusion in a part-time capacity (0.5) and in that context his promotion to Chief should only have been on that same basis however, management enhanced his entitlement and appointed him full-time to the Chief role. Therefore, the claim that he has been discriminated against due to his race and gender must fail as he has been promoted and has the same terms and conditions as all of his colleagues.

Indeed, management would argue he was treated more advantageously given that he was only entitled to the Chief role in a part-time capacity, yet they appointed him full-time to the role. The complainant is held in very high regard by management and his colleagues alike and while management fully accept and acknowledge the effect that this may have had on him in terms of his self-confidence and relationships within the department, that alone does not constitute discrimination and the claim is misconceived.

The HSE saysthat thecomplaintdoesnotmeettheburdenofprooftorequiretheburdenofproof to fall to theemployer.In fact, the complainant was treated more advantageously given that he was appointed to the Chief role in a full-time capacity when it shouldhaveonlybeenforhalf-time.

Management acknowledges the effect this situation had on the complainant but that does not ground a claim for discrimination; the claim has no validity and is misconceived.

The key facts relating of the complaint are set out in the submissions and evidence of the parties above and the key elements of the narrative are not in dispute. It is nonetheless helpful to summarise them.

In the background is a national collective agreement on the filling of Chief Medical Scientist posts which provided that an individual Senior Medical Scientist in overall charge of a department could be upgraded to Chief Medical Scientist without recourse to a confined competition subject to:

(i)            The individual involved holding the qualifications necessary for appointment as set out by the Department of Health and Children. Where the requisite qualifications are not held the post falls to be filled by open competition among eligible staff and.,

(ii)          A position of Chief Medical Scientist is merited in accordance with the revised grading structure i.e., the Department has 6 whole time equivalents or more Medical Scientist staff employed.

Of the four departments in the complainant’s hospital, three of the appointments were non-contentious and went ahead. The complainant learned of this on his return from annual leave and was upset by it, believing, it seems that he was being passed over or otherwise unfairly treated. This was not the case.

In addition, he continues to assert that his colleague, KC (who was the department lead) had been promoted to the position, which is not correct, although he has persisted with this argument up to and at the hearing.

Indeed, his complaint appears to turn on this erroneous and mistaken belief as he asserts that not only had she been promoted but that this had been done on a discriminatory basis as she was a woman and Irish and he was a Nigerian man.

The complainant had been made aware of this at quite an early stage by his line manager and why he persisted with asserting it is a mystery. For example, on the WRC complaint form he asserted that he had not been promoted which is clearly not the case.

This also appears in his submission, although there it is also qualified with the word ‘initially’. It is an important qualification as the complainant was promoted within a relatively short time.

The respondent’s evidence was that the complainant was being considered for the promotion from April 1st.

I find as a matter of fact that KC had not been promoted to the position that she had not been promoted to the position.

Initially, based on its interpretation of the relevant national agreement, the respondent was of the view that a ‘confined’ competition would be required to fill the position in which the complainant and a third colleague would be eligible to compete (but not KC as she did not meet the eligibility criteria, despite being the department lead).

The respondent then found itself facing adverse reaction from both the complainant and two other employees, OD, and KC, including the service of an ES 1 form by the complainant (which actually is an instrument related to the Equal Status Act and has no role in employment equality matters) but it had the effect of triggering a review of the position in respect of both its dissatisfied employees by the respondent.

A complaint under the respondent‘s grievance machinery would, in all probability, have achieved the same outcome.

This resulted in the appointment of the complainant (but not of KC), and this was backdated to March 21st, 2022.

It is difficult to discern any facts here which may give rise to a presumption of discrimination.

The complainant stated in evidence, in response to a direct question, that the date on which the alleged breach of the Act occurred was August 3rd, 2022.

But paradoxically the only act that occurred on that day was the transmission to him of the news that he was to be appointed to the position. It is hard to see how this can represent a breach of the Employment Equality Act.

He also instanced the appointment of his three colleagues in the other departments, but the facts set out above clearly show why those appointments were enabled to proceed and why that in his department did not; and in the latter case it had absolutely nothing to do with any protected characteristic of the complainant, but rather confusion over the respective eligibility of the various parties

He may be correct that an assumption was made about KC’s eligibility, but she was, after all the department lead and, in any event, she was not promoted.

This was no more than an error and was soon rectified.

All these appointments were taking place on foot of a national agreement, and I accept that the position in respect of the complainant gave rise to a need by the respondent to clarify the terms on which any appointment might be made, having regard to the eligibility of the various candidates. 

It may have made errors in how it initially approached the matter, but there is not a scintilla of evidence to suggest that this had a discriminatory element.

The matter was resolved within a couple of months and entirely to his benefit. The complainant says that this was only because he ‘took the respondent to task’.

Perhaps so, and sometimes workers must take their employers to task; this is a central element of industrial relations activity and that is the purpose for which workplace grievance machinery exists (probably as effective and less trouble than the misplaced service of an ES1) and still does not point to a conclusion that the respondent’s actions were discriminatory.

But not every grievance which will require a worker to take their employer to task will also ground a breach of equality law.

Because what arose in this case was essentially an industrial relations issue to which the complainant initially rather overreacted, and despite the clear position of which he has been fully aware for quite some time, has continued to do so.

The complainant’s legal representative properly pointed out that the standard that is required to be met is that the complainant’s protected characteristics played ‘no role whatsoever’ in how the respondent acted.

I am quite satisfied that this is the case and that there was no less favourable treatment of the complainant such as would represent a breach of the Employment Equality Act, nor indeed has he made out a prima facie case of one.

The bar for a prima facie case is a low one, and generally relatively easy to establish.

In this case the complainant has not managed to do so. It is well established that an action impacting a person simply possessing one of the protected characteristics will not, of itself, suffice to do so.

The test in Melbury Developments Ltd v Valpeters [2010] ELR 64 is set out above in the respondent ‘s submission to the effect that, "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn."

This accurately describes the complainant’s complaint here and the respondent’s actions in this case were entirely based on trying to apply fully the terms of the agreement to all relevant candidates, regardless of their characteristics.

For these reasons complaint CA-53125-001 is not well-founded.

For the reasons set out above complaint CA-00053125-001 is not well-founded and it is not upheld.

Equality, Prima Facie case