Complainant

Respondent

Anonymised Parties

A Student Nurse

A Health Care Provider

Representatives

Mr Frank Drumm B.L. instructed by Collier Law

 Local Management Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00052659-001

07/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00052659-003

07/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00052659-004

07/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00052659-005

07/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00052659-006

07/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00052659-007

07/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052659-008

07/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00052659-009

07/09/2022

The complainant was a student nurse and was employed on a specified purpose contract with the respondent to undertake her clinical placement. The complainant’s employment with the respondent ended on 10th March 2022 following her final assessment and the complainant was ultimately unsuccessful in becoming a Registerred General Nurse (RGN) which was based on not reaching the required standards as set by the university where the complainant was a student.

The complainant has submitted several complaints under the Employment Equality Acts, 1998 to 2015. The complainant alleges that she was discriminated against on the grounds of disability, in getting a job, in being promoted, in being denied training, being victimized, being denied reasonable accommodation, discriminated in her conditions of employment, being dismissed for discriminatory reasons, being dismissed for opposing discrimination, being harassed and being discriminated in “other”. The complainant contends that the most recent act of discrimination occurred on 9th March 2022.

Anonymization.

Given the private nature of the complainant’s health issues, I have decided to use my discretion and anonymize this adjudication decision.

The respondent raised a preliminary point that it was not the correct respondent. The respondent contends that it provided a specified purpose contract to the complainant for the purpose of her completing the clinical placement element of her training as a student nurse. The respondent ‘s position is that the university sets the required standard and assesses the student’s entire performance throughout the programme to determine if the student is successful in becoming a registered nurse. The respondent stated that as it has no function in that decision, it is not the correct respondent for the purpose of addressing the within complaints.

The complainant’s representative rejects the argument put forward by the respondent. The complainant’s position is that she was employed by the respondent, at the hospital for a nine-month specified purpose contract as part of her clinical placement. It is the treatment she received during this time that forms the basis of her complaints, which she contends are correctly submitted against the named respondent.

I note the position of both parties in relation to this matter and accept that the respondent has no function in the ultimate decision of the university in determining if the student is successful in becoming a registered nurse. However, the complainant was an employee of the respondent for the purpose of the clinical placement element of her training and it is in that period that the complainant contends that she was subject to discriminatory treatment and that the respondent failed to provide reasonable accommodation to her as someone with a disability.

On this point and in relation to the complaint submitted, I find that the respondent is correctly named, and I will address each of the complaints in respect of the relevant statutory provisions pertaining to each one.

Extension of Time request

The complainant’s representative sought an extension of time in relation to the complaints submitted under the Employment Equality Acts, 1998-2015. The complaints were submitted almost 6 months after the complainant’s employment ended following her final interview assessment on 9th March 2022. The reckonable period for the purposes of the complaint is 8th March 2022 – 7th September 2022.

The complainant’s representative acknowledged the delay in submitting the complaints. It was explained that the delays arose as a result of assurances given to the complainant by her trade union that a verbal agreement had been given by the respondent that an investigation would be carried out into the assessment of 9th March 2022. However, there was no progress made in respect of the grievances and the complainant submitted her complaints to the WRC on 7th September 2022. The complainant’s representative cited the Labour Court Determinations in Alert One Security Ltd v Khan DWT 72/2015 and Cementation Skanska v Carroll DWT 0338 in support of its position that the appropriate legal test has been met in respect of seeking an extension of time.

In addition, the complainant’s representative cited the Supreme Court Decision in County Louth VEC v Equality Tribunal [2016] IESC 40 in respect of its position that the employer maintained a discriminatory regime, role, practice or principal and that once a complaint is made within six months from the date of the last act or omission, all conduct found to form part of the continuum will be regarded as having occurred within time. The complainant is seeking that an extension of time be granted so that the period 8th September 2021 to 7th September 2022 be considered.

Meeting and assessment of 8th and 9th March 2022

The complainant stated that the final assessment was conducted with bias and that the assessment did not consider her additional needs throughout the placement as identified in the risk assessments that were carried out in relation not her. The complainant also asserts that the assessment focused on one particular day rather than the entire placement rendering the assessment unfair and discriminatory.

Evidence

The complainant gave sworn evidence at the adjudication hearing on 25th April 2024. The complainant outlined the placements she had undertaken as part of her training programme to become an RGN. The complainant stated in evidence that she required some accommodation following risk assessments that had been carried out in relation to her but was not provided with same. The complainant outlined that she has Cerebral Palsy which can result in issues with walking and some difficulties in writing due to issues with her wrist. The complainant also outlined that she is dyslexic and suffers with anxiety as well as previously having had cardiac issues. The complainant stated that she raised two grievances in respect of the lack of support given to her in line with her risk assessments but that nothing was done. The complainant stated that she required more time to write her notes and to be facilitated with more time with her walking speed while she carried out her duties. The complainant stated that there were no issues with her clinical knowledge and that the issues arose because of her speed in doing her job which arose as a result of her disability for which she received no accommodation from the respondent.

It was put to the complainant in cross examination that the grievances she had raised were addressed and that the accommodations that the complainant needed were put in place for her and that she was to inform her colleagues when she needed additional time to carry out tasks and when additional breaks were needed. The complainant stated in response that this may have been written down, but the accommodation was not provided in practice. It was also put to the complainant that the purpose of the preceptor nurse was to provide support and guidance and correction to the student when appropriate which appears to have led to the two grievances lodged. The complainant responded that it was the lack of reasonable accommodation that led to her grievances and not the fact that she had been subject to correction by her preceptor(s) during her placement.

Notwithstanding its preliminary point, the respondent refutes that it discriminated against the complainant at all throughout her placement. The respondent’s position is that it facilitated the complainant’s clinical placement on a specified purpose contract that was to run from Sept 2021 until January 2022 and was supportive to the complainant throughout. Due to grievances raised by the complainant and other issues including the complainant’s sick leave absences, the contract did not end until after the final assessment was carried out in March 2022 and the complainant was deemed not to have met the required standard as set by the university. The respondent’s position is that it supported the complainant throughout the placement and that ultimately, she was unsuccessful due to not having attained sufficient clinical/nursing competency as well as her inability to work at a reasonable pace and further issues with care provision and the administering of medications. The respondent stated that the complainant raised numerous grievances throughout the placement, and all were addressed in the appropriate manner. In respect of providing the complainant with reasonable accommodation, the respondent stated that there were risk assessments carried out in respect of the complainant and her need to take additional breaks was accepted and the complainant was supported in this and advised to inform staff when she needed to take additional breaks.

In respect of the 8th and 9th March 2022, the respondent stated that the final interview/assessment was carried out as agreed and with the appropriate personnel in attendance. The complainant’s performance throughout the placement was assessed and the complainant was not successful in meeting the required standard to become an RGN. The respondent stated that it was supportive of the complainant during the placement and that it had no role in the standards as these are set by the university.

Evidence

A Director of Nursing gave brief evidence by affirmation. The witness confirmed details of the progression policy with regard to nurses in training and the required level of hours to be achieved in a clinical setting and in the university sector.

The witness also gave evidence in relation to the delay in the complainant’s commencement on placement due to her refusal to engage in the review process.

As regards the standards required to complete the training and become an RGN the witness stated that the standards are set by the nursing board and the university, and are measured through the assessments that are carried out.

Cognisable period of the complaint.

The complaints were submitted to the WRC on 7th September 2022. The cognisable period of the complaints is therefore the six-month period immediately prior to the date of referral (8th March 2022 to 7th September 2022).

The Applicable Law

Discrimination

Sections 6 (1) and (2) of the Employment Equality Act, 1998 at relevant parts state:

6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) - (f) not relevant…… 

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

85A (1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the F156[Director General of the Workplace Relations Commission] under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Time Limits

Section 77(5)(a) and (b) of the Employment Equality Act, 1998 provides as follows:

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

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

Election of complaints

The complainant submitted complaints of discriminatory dismissal pursuant to the Employment Equality Acts 1998 as well as a complaint of unfair dismissal under the Unfair Dismissals Act, 1977.

A letter issued from the WRC to the complainant’s solicitor on 4th November 2022 seeking election in relation to the dismissal complaint.

Section 101(4)(A) of the Employment Equality Act, 1998 provides as follows:

101(4A) (a) Where an employee refers—

(i) a case or claim under section 77, and

(ii) a claim for redress under the Act of 1977,

to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.

As there was no election from the complainant’s representative in relation to the dismissal complaints, the discriminatory dismissal complaint is deemed to have been withdrawn in line with the provisions of the legislation.

Extension of Time request

The complainant’s representative sought an extension of time in relation to matters that occurred outside of the cognisable period of the complaint.

In respect of issues that are alleged to have occurred prior to 8th March 2022, the complainant’s representative sought that these incidents be considered within time as it was claimed that the respondent kept in force a discriminatory regime, rule, practice or principle which were so connected as to constitute a continuum of discrimination.

On this point I note Labour Court Determination EDA 179 Dunnes Stores v Breda Mulholland which states as follows:

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

The Court also stated that:

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

Prior to considering matters outside of the cognisable period of the complaint, the complainant must first establish that she was treated less favourably as a result of her disability in the six months prior to submitting her complaint. In the instant case the two relevant dates are the 8th and 9th March 2022.

In respect of 8th and 9th March 2022, there is disagreement in respect of the complainant’s clinical/medical knowledge and the standard of care provided by her during the placement. It is also the case that the complainant is extremely dissatisfied and upset that she was unsuccessful in her placement following her final interview of 9th March 2022 and consequently did not meet the standard to qualify as a RGN. The complainant contends that the assessment of 9th March 2022 was conducted with bias and no account was taken of the risk assessments previously conducted in relation to providing her with reasonable accommodation as outlined therein.

While I empathise with the complainant in relation to the situation, the complainant bears the burden of proof in respect of her complaint that she was subject to less favourable treatment by this respondent within the six months immediately prior to the referral of the complaint and that she was not provided with reasonable accommodation. I note that the required training standards of the student nurse are set by the university, and it is the university who ultimately decides whether the student has met the required standards to complete the training programme and become an RGN. Having considered the matter, I find that the complainant has not met the burden of proof on the issue on the basis that the assessment forms throughout the placement outline the areas where the complainant has worked well and the areas where improvements were needed, which the complainant herself acknowledged. From my review of the assessments and daily feedback sheets, the comments of those working with the complainant are honest and constructive. The desktop review that was carried out in between the hearings of the within complaints provides a detailed account of the processes followed in respect of the complainant’s placement, the competency assessments and the feedback that was provided to the complainant in that period. It also sets out the agreed process in respect of the meetings of 8th and 9th March 2022. I do not find any evidence of discriminatory treatment towards the complainant in respect of those two dates.

In all of the circumstances of the complaint, I find that the complainant has not established a prima facie case that she was discriminated against on the disability ground in the six months prior to submitting her complaint. In those circumstances, the issues that occurred prior to 8th March 2022 are outside the scope of this investigation unless an extension of time is granted.

Extension of Time – Reasonable cause

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states as follows: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

I note the reasons put forward by the complainant’s representative in relation to not submitting a complaint to the WRC until 7th September 2022. The complainant had hoped that an internal grievance/investigation would be carried out into the final review of 9th March 2002 which would have addressed the matter as she had been advised. This did not happen.

In relation to the request to extend time by a further six months to 8th September 2021, I note Labour Court Determination No:EDA177 Brothers of Charity Services Galway v Kieran O’Toole where the Court held that:

“the Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limits provided under the Act.

Section 77 of the Act is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the WRC, such a complaint should be in writing and submitted within the time limits provided for in Section 77(5).”

I also note Labour Court Determination No: EDA1621 Business Mobile Security Services Ltd T/A Seneca Ltd v John McEvoy in relation to utilising internal grievance procedures which states:

“The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.

The Court finds that such a decision cannot justify the delay in bringing proceedings under the Act and accordingly determines that the complaint is statute barred.

The Complainant, in the alternative sought an extension of time. He relies on the same arguments as set out above and in addition submits that he meets the tests set out by the Court in the settled case law. In particular he submits that he has explained reason for the delay and submits that it was commensurate with the duration of the grievance procedure. He submits that he acted immediately after the outcome of the process was available to him.

The Respondent submits that the Complainant is effectively seeking to second guess his decision not to proceed through the statutory procedures available to him and that his delay no more justifies an extension of time that it did the delay itself.

For the reasons set out above the Court finds that the Complainant opted not to present a complaint under the Act and belatedly changed his mind when his chosen alternative course of action did not avail him. The Court finds, in the circumstances of this case, that the Complainant has not set out reasons such that would justify the delay in bringing proceedings under the Act. Accordingly, the Court rejects the application to extend time.”

Having considered the matter, I do not accept the reasons put forward by the complainant’s representative in seeking to extend time.  While I do accept the situation was stressful for the complainant and I empathise with her in that regard, I note that grievances were raised by her when issues arose in the workplace during the placement and if the complainant felt that she had been discriminated against and harassed by the respondent, she had the option to submit complaints to the WRC within the statutory time limits which she did not do.

In all the circumstances of the matter, I do not grant the extension of time in relation to matters that occurred prior to 8th March 2022.

Harassment complaint

The harassment complaints arise outside of the cognisable period of the complaint and are therefore out of time.

Post dismissal victimisation

The complainant also raised a complaint of post dismissal victimisation. This is alleged to have occurred at a meeting on 16th September 2022, however that date occurred after the within complaint had been lodged to the WRC on 7th September2022 and on that basis I do not have jurisdiction to consider this complaint.

The respondent contends that the complainant was not dismissed. Notwithstanding its preliminary point that it is not the correct respondent to the complaint, it stated that the complainant’s placement, as part of her nursing degree, came to an end in line with the terms of the specified purpose contract for which she was employed and in those circumstances the provisions of the Unfair Dismissals Act, 1977 do not apply.

The complainant’s representative contends that the complainant was unfairly dismissed from her employment following her final assessment on 9th March 2022. The complainant is seeking re-instatement to her position.

Mitigation of Loss

The complainant’s representative stated that the complainant commenced employment on 12th March 2022 as a Health Care Assistant and remains employed to date and is in receipt of a higher level of earnings than when she was employed with the respondent.

I note that the complainant was engaged on a specified purpose contract with the respondent for a period of 36 weeks and that the contract stated that the provisions of the Unfair Dismissals Act, 1977 would not apply to the termination of the contract when it ended in line with its own terms.

It is also the case that the complainant had less than one year’s service with the respondent and on that basis does not have the requisite service to make a complaint under the Act.

This complaint relates to an assertion that the complainant did not receive a written statement of her terms and conditions of employment when employed by the respondent. The complainant stated that this is in breach of Section 3 of the Terms of Employment (Information) Act, 1994.

The respondent stated that the complainant signed and received a copy of the contract of employment when she commenced her placement.

I note the submissions of the respondent that includes a signed copy of the complainant’s contract with the respondent. On that basis, I find that the respondent complied with the legislation and that there is no merit in the complaint.

For the reasons stated above, I find that the complaint is not well founded.

For the reasons stated above, I find that the complaint is not well founded.

For the reasons stated above, I find that the complaint is not well founded.

Discrimination, victimisation, harassment, terms of employment, unfair dismissal