Complainant

Respondent

Parties

Somy  Thomas

Beaumont Hospital

Representatives

Irish Nurses and Midwives Organisation

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027338-001

27/03/2019

The complainant submits that she was discriminated against on the grounds of race contrary to the provisions of the Employment Equality Acts,1998-2015, (‘The Act’), when the respondent failed to promote her on multiple occasions, the most recent being the 15/3/2019. She further contends that she was victimized on grounds of race.

The complainant is of Indian nationality.

She commenced employment as a staff nurse in 2004 and remained with the respondent until she resigned on 31/ 3/2019.

She submitted her complaint to the WRC on 27/3/2019.

The respondent submits that that the complainant must choose between the Unfair Dismissals Act 1977 and the Act of 1998 for a decision on the circumstances which led her to resign, and which are included in the instant complaint, but also form the basis of her complaint of constructive dismissal submitted under the Unfair Dismissals Act 1977, complaint numbered ADJ-00024529, which has yet to be heard.

The respondent also points to the fact that ADJ-00013621, a complaint taken under the Industrial Relations Act 1969, concerning her experience with the respondent Occupational Health Department which she now attributes as a major factor leading to her decision to resign is res judicata as it has been adjudicated upon and is on appeal to the Labour Court.

 In the instant complaint, the preponderance of evidence concerns the failure of the respondent to appoint the complainant to a promotional post on multiple occasions, which the complainant holds to be evidence of discrimination on the grounds of race.

The complainant, in addition, sets out the circumstances which led her to resign, circumstances which are also included in her complaint submitted under the Unfair Dismissals Act 1977, complaint numbered ADJ-00024529, tabled, also, for the 7/11/23. 

The respondent states that her experience with the Occupational Health Department is res judicata as it is a matter on appeal to the Labour court under the Industrial Relations Act of 1969.

Having heard the evidence, I intend to address in complaint numbered ADJ-00024529 and not in the instant complaint the complainant ‘s experience and the circumstances obtaining from 3 April 2018- March 2019 with the respondent Occupational Health Department which the complainant submits compelled her to resign. The complainant’s interactions with the Occupational Health Department prior to 3 April 2018 were decided upon in ADJ- 00013621 and have been appealed to the Labor Court.

 Thus, I decide to consider the instant complaint and ADJ-00024529 separately. 

Request for witness evidence to be heard.

At the outset, the complainant requested that the evidence of two colleagues who could attest to the culture within the hospital should be heard. But the complaint before the WRC focusses on specific instances of alleged discrimination and alleged victimisation, and an examination of these allegations is the task in hand. The colleagues put forward as witnesses had not witnessed the specific incidents forming the basis of this complaint.

Hence, I could not accede to this request.

The complainant claims that she was subjected to discrimination by the Respondent, Beaumont Hospital, on the grounds of her race in terms of Section 6(2)(h) of the Employment Equality Act, 1998 (hereinafter referred to as the “Act”) and in contravention of section 8 of that Act, when she was not selected for promotion in competitions held during the period June 2018 to March 2019. The complainant had moved from India to Ireland in 2004 and became a naturalised Irish citizen in 2012.

The last act of discrimination occurred on 15/3/2019 when the respondent failed to appoint her to the Clinical Nurse Specialist Cystic Fibrosis (‘CNS’) post. Nor was she placed on a panel for future vacancies that might arise.

Further instances of discrimination occurred

On 21/6/2018 when the complainant was not appointed to a promotional post of Clinical Advanced Nurse Practitioner (‘CANP’) in respiratory nursing,

 On 28/9/2018 when she was unsuccessful at interview on 28/9/2018 for the post of Clinical Nurse Specialist respiratory nursing,

On 12 and 13 Dec 2018 when the respondent refused to change the interview date for the posts of Clinical Nurse Manager 1 and 2 (‘CNM 1 and 2’).

 The complainant further claims that she was subjected to victimisation by the Respondent from June 2018 – March 2019.

Evidence of complainant given under oath.

The complainant is of Indian descent. She has been employed as a staff nurse with the respondent from 2004 until March 2019.

She graduated with a M.Sc. in respiratory nursing in 2018. She was awarded a post -graduate diploma in respiratory nursing in 2013.

Her work as a staff nurse in respiratory or any other type of nursing had never been called in to question. She had never been subject to any disciplinary proceedings. The respondent had never conducted an appraisal on her performance.

Competition for CNS Cystic Fibrosis, 28 September 2018.

The respondent dropped the requirement in August 2018 for a post graduate qualification in this competition in contravention of the Framework for the Establishment of Clinical Nurse/ Midwife posts which is the national standard setter. The abandonment of this requirement enabled other candidates to compete and placed her at a disadvantage. An Indian national benefited from the abandonment of this requirement. The complainant was the only candidate who possessed the specialist post- graduate requirement and she had been working in the respiratory ward.

The post was readvertised following the INMO’s intervention reminding the respondent of the requirement for a post graduate qualification.  The position was then readvertised specifying the necessity of post graduate requirements. Yet the respondent appointed one candidate, an Indian national, not in possession of a post graduate qualification. The offer to this candidate was withdrawn on 10/10/2018, again, after the intervention of the INMO. An Irish nurse was then appointed to the post.

Competition for CNM 1 and 2, December 2018.

In 2018 she had been working in a 36 bedded ward. Most of her time was spent as a nurse in charge, dealing with consultants and exchanging clinical updates.

The respondent rejected her request for a postponement of the interview for a week. The interview was scheduled for 12 and 13 December. She was in India taking care of her father-in-law who was dangerously ill.

She had been granted postponement of an interview in 2015 as she had been on sick leave. The respondent had postponed the date of interview for two Irish colleagues in 2018.

Both the Clinical Nurse manager 1 and Clinical Nurse Manager 2 posts were given to nurses of Indian origin.

The complainant became ill with stress and anxiety and was on sick leave from January 2018 to March 2019. She states that the respondent failed to maintain regular contact with her during her period of sick leave contrary to section 8 of the respondent’s guideline, Managing Attendance Policy. Her representative was unable to advise if the respondent had maintained contact with nurses of different ethnic origin during their periods of sick leave.

Competition for CNS Cystic Fibrosis, 15 March 2019

The complainant was unsuccessful in this competition and, unlike in two previous competitions in 2013 and in 2015, no panel was created. The interview was a mere 20 minutes as opposed to the usual 40 minutes. The body language of one of the interviewers signalled disinterest. His head was down, his eyes were closed, and she was unsure if he was awake.

The INMO had asked for a different interview panel on 11/3/2029 prior to this competition, as members of this March 2019 panel had previously interviewed the complainant and were named in her previous complaints of discrimination which she had submitted to the WRC. This request was refused.

Her score of 57% in the March 2019 interview was lower than those awarded in previous competitions. For example, she was awarded 90% on all competencies in 2013, 75-78% in the 2015 competition, and only secured a score of less than 60% in the September 2018 competition. She was the only candidate who possessed a master’s degree in this competition.

The complainant pointed to the respondent’s “Guidelines for taking notes at Interviews”, given to interviewers, dated 15/3/2019. These guidelines stated 

“Note any incidents that occur e.g. somebody asks a question that may be discriminatory in nature- record details factually- don’t record your opinion, also

Avoid recording any of the following any comments that may be discriminatory in nature”

The complainant maintains that this is evidence of a disposition to discriminate and how to conceal discriminatory questions.

The complainant became ill with stress and anxiety and was on sick leave until March 2019.

Victimisation complaint.

This complaint is that:

1.she was not panelled in the competition of September 2018, December 2018, and March 2019 because she had taken complaints under the Employment Equality Act against the respondent in February and March 2018,

2.the respondent failed to supply another Dublin hospital with the necessary information about the complainant in June 2018 when she was applying for a job in that hospital,

3.her experience with the Occupational Health Department as evidence of victimisation.

Cross examination of witness.

To the point about the urgency of an appointment in December 2018 for the post of CNM1, the witness stated that the appointment was not critical and could have been postponed for a week.

Concerning the mark of 57% in competition, the witness stated that she was puzzled about the downward trajectory of her marks over sequential competitions. This led her to mistrust all on the selection committee and therefore she could not have confidence in the marks awarded to her.

Legal Authorities.

The complainant refers to Mey v St James Hospital, 2007, DEC -E2007-016 where an absence of transparency along with the complainant’s superior qualifications and greater experience established a premia facie case of discrimination which the respondent was unable to rebut, and the complainant was awarded compensation.

The complainant also relies on the decision of the Department of Health v Gerard Gillen, EDA 0412, which led the Labour Court to conclude that the absence of records on that interview amounted to discrimination.

Conclusion.

The complainant states that the evidence presented raises an inference of discrimination and that sub- conscious bias must be given due consideration.

The complainant’s rep pointed to the error when in September 2018 concerning the respondent’s failure to synchronise their qualification criteria with the nationally recommended qualifications for these posts.

 He points to the Guidelines stipulating that interviewers should avoid recording comments that may be discriminatory and the absence of a satisfactory response form the respondent on this point.

He requests that the complainant’s complaint be upheld.

The respondent denies that they discriminated against the complainant on any of the grounds listed under the Act. The respondent denies that they victimised the complainant.

 The complaint of victimisation which the respondent understands to be the complainant’s resignation on the 28 March 2019 occurring one day after submitting her complaint of discrimination and victimisation on the grounds of race on 27 March 2018, and in reliance on the case of Mackerel v Monaghan County Council, EDA 1213, cannot be sustained.

The non- panelling of the complainant which the complainant characterises as victimisation occurred prior to her resignation in March 2019.Victimisation cannot be retrospective.

Time limits.

The incidents cited by the complainant as evidence of discrimination, and which predate the 6-month time limit that being the 28/9/2028-27/3/2019 are statute barred.

Without prejudice to the respondent’s preliminary points, the respondent set out their substantive response to the instant complaint.

Complaint of discrimination concerning the competition for CNS Cystic Fibrosis post, September 2018.

The respondent chose the best candidate for this position on the day. The respondent referred to the score sheets, submitted at the hearing, which set out the scores of different candidates. They stated that the variation in her marks between different competition was not evidence of discrimination but merely that nothing was static; the pool and quality of the candidates change.

The selection process sets standardised criteria. The respondent submitted the score sheet demonstrating the complainant scored 60% whereas the successful appointee scored 90%. The initial appointee, an Indian nurse, had the offer withdrawn when the complainant’s union alerted the respondent to the fact that she did not possess a master’s qualification a prerequisite for appointment to this post. The position was then offered to the next placed candidate who was ranked 3rd and whose mark was between 75-80%. 

It is not prima facie evidence of discrimination as an Indian nurse benefited from the respondent’s failure to set the right criteria.

 The respondent objects to the complainant’s assertion that because some of the selection committee members had interviewed her in previous competitions, they were biased against her. The complainant never initiated any grievance against an individual member of the selection committee. Up to March 2019, 34 different staff members had sat on interview boards interviewing the complainant in several competitions, so it is not correct to state that the same interview panel interviewed her for most of the competitions in which she had been involved.

The respondent offered the complainant interview preparation before this interview.

CNM 1 and 2 competition, 12 and 13 December 2018.

The complainant chose not to engage with the interview offered to her to take place via skype, three days after her arrival in India. IBEC stated that it was not unreasonable of them to proceed with an interview via skype in December 2018.

The complainant has presented no prima facie evidence of discrimination in relation to the respondent’s refusal to postpone the interview for a further week.

Both posts were offered to Indian nurses. The complainant was not panelled.

Given these circumstances, there can be no evidence of a prima facie case of discrimination.

Competition for CNS Cystic Fibrosis, of March 15, 2019.

To the complainant’s point that she had more experience than the successful appointee, the respondent contends that she was unable to demonstrate to the selection committee as to how this experience could translate into an ability to exercise change management, staff management and leadership- criteria identified as functions essential to this post. The complainant did not convince the selection committee of her superior competencies in these areas relative to other candidates.

An external interviewer sat on the selection committee. An external interviewer is discretionary.

The respondent provides training in race awareness and in unconscious bias for interview panels.

 Panels have a usual lifespan of one year and are not a guarantee of a position. Placement on a panel is dependent on the candidate reaching a particular mark of 70% at interviews.

 IBEC confirmed that the impugned guidelines apply to all interviews in the hospital.

The formal grievance concerning the respondent’s conduct towards her while she was on sick leave is the subject matter of an appeal to the Labour Court and cannot be considered as part of this complaint.

Panels have a usual lifespan of one year and are not a guarantee of a position. Placement on a panel is dependent on the candidate reaching a particular mark of 70% at interviews.

Evidence of Strategic Workforce Lead given under oath.

The witness was the complainant’s line manager. She sat on the March 2019 selectin committee.

She had been a Director Nurse Manager of medical wards.

Competition for CNS Cystic Fibrosis, March 2019

 A Clinical Nurse Manager chaired the selection committee which included two doctors who put clinical questions to the complainant, and included, also, HR personnel.

An interview of twenty-one minutes’ duration is not unusual.

Possession of a master’s degree was not a criterion used to award marks at interview. It was used at the shortlisting stage.

The questions put to all candidates were designed to enable them to demonstrate their understanding of and ability to perform the role. This did not happen for the complainant as she did not reach a score of 70%. The successful candidate got 92%.

Competition for CNS Cystic Fibrosis post, September 2018.

This was a management role entailing a lot of working with families of patients. The successful appointee would have to advocate for expensive drugs for the patients.

The Nursing and Midwifery and Developmental Unit Guidelines changed the requirement for a master’s degree for this appointment from mandatory to desirable in August 2018.

The successful appointee was Indian.

CNM 1 and 2 competition, 12 and 13 December 2018.

The complainant chose not to engage with the offer of a skype interview on the 12 and 13 of December.

Cross examination of witness.

The witness stated that a twenty-one-minute interview was adequate for candidates and was not unusual.

In response to the complainant’s observation that one interviewer seemed totally disinterested, she did not recall anything untoward about the demeanour of any interviewer.

The witness stated that she was unaware of the complainant’s previous referrals to the WRC until January 2019.

Complaint of Victimisation.

The respondent stated that the complaint concerning the correspondence in June 2018 between the respondent and another hospital is outside of the statutory time limit.

The respondent states that I am constrained from dealing with the assertion that the complainant has been victimised by the treatment meted out to her by the respondent Occupational Health Department because of the High Court decision in Intel v Cunningham Ireland Ltd, (2013), IEHC 207 which held that a party may not be vexed twice by the same matter. And the complainant has advanced this treatment to be a cause of her resignation, a matter submitted in ADJ -00024529.

Not being panelled is not an act of victimisation.

The respondent states that the complainant has failed to make out a complaint of victimisation as required by section 74 of the Act.

Conclusion

In the September 2018 competition the complainant met a better candidate. In December 2018, no prima facia arises as two Indian nurses were appointed.

The complainant came up against a talented pool of competitors. She refused assistance with interview techniques until 2019.

In terms of the complaint about the occupational health department, that is before the Labour Court.

The complainant has failed to raise an inference of discrimination. Should the adjudicator find to the contrary, the respondent has met its obligation to refute any such inference.

the complainant has failed to make out a complaint of victimisation.

I am required to establish if the complainant was discriminated against on grounds of race in terms of 6 (2)(h) and contrary to section 8 of the Acts.

The first matter for consideration is the identification of the referable period which is a matter in dispute.

 The complainant submitted her complaint of discrimination to the WRC on the 27/3/2019. 

 Relevant law.

 Section 77 of the Act as amended states

“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”.

Therefore, the only admissible incidents grounding the complaint of discrimination are those that occurred in the six months prior to the submission of the complaint, that period being the 28 September 2018 -27 /3/2019.

However section 77(5)(b) of the Act, as amended, addresses the jurisdiction to extend time and provides as follows:

“(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”.

The complainant made no case for an extension of time but did advance the view that the incidents which fell within the statutory limit and those that fell outside of it were connected and were part of a continuum.

In Hurley v County Cork VEC, EDA 1124, the Labour Court noted that Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation and

held that

 “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

But while the complainant maintains that the respondent’s failures to promote the complainant on multiple occasions are connected and serve to constitute a continuum, the complainant must, in addition,  satisfy a further requirement  , set out in Cork County VEC v. Hurley EDA 24/2011 and  in County Dublin VEC v. Dodo EDA1327/2013, where the Court held that in order to consider those acts occurring outside of the statutory period, a discriminatory act must have occurred within the limitation period . Therefore, I must decide if the acts of alleged discrimination occurring between 28 September 2018 -27 March 2019 constitute discrimination on the grounds of race and enable those acts occurring outside of the statutory period to be considered as part of a continuum of discrimination.

Within that period, the complainant identifies three instances of alleged discrimination:

the failure to promote her to the post of   CNS, Cystic Fibrosis, 28/9/2018,

the failure to interview her for either of the promotional posts of CNM 1, or CNM 2 in respiratory wards in December 2018 and

the failure to promote her to the post of CNS in Cystic Fibrosis on 15 March 2019.

Outside of that period, the complainant instances the failure to promote her to a promotional post in June 2018 and in prior competitions as evidence of discrimination on grounds of race.

I must first consider if the complainant has established a prima facie case of discrimination on the within time complaints.

Relevant Law:

Burden of proof.

Section 6(1) of the Employment Equality 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) ...”

 Section 6(2)(h) of the Acts defines the discriminatory ground of race a

” h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

 The first obligation which the complainant must meet is compliance with section 85A of the Employment Equality Acts 1998-2015 which lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A (1) of the Acts states that 

“In any proceedings where facts are established by or on behalf of a complainant from which it may be presumed that discrimination has occurred in relation to him/her, it is for the respondent to prove the contrary”.

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201, the Labour Court concluded that

 “a complainant 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”.

The complainant must discharge this evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her race. If she does not, her case cannot succeed.

I In order to achieve compliance with section 85(A)- the first step- she must satisfy three elements of a test laid out in Minaguchi v Mr. Ray Byrne, T/A Wine port Lakeshore Restaurant DEC-E/2002/20. The three requirements necessary to establish 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.”

Application of the above preconditions to the circumstances of the three competitions which the complainant maintains are acts of discrimination.

Competition for CNS Cystic Fibrosis, of September 2018.

There were 8 candidates, four Irish, four Indian. Two appointments were made; one Irish nurse was appointed and one Indian nurse.

While it is the case that the offer was later withdrawn from the Indian nurse who did not possess a particular qualification, the fact is that the respondent appointed a nurse of Indian nationality- though later undone due to the complainant’s union bringing the absence of a particular qualification to light.  An Irish person was subsequently appointed.

The scores ranked the complainant fourth. The complainant did not reach the appointable score of 70% based on the criteria used at interview.

The complainant, therefore, cannot claim less favourable treatment than a person of another race as a person possessing the same nationality as herself was initially appointed.

The complainant has failed to establish a prima facie case of discrimination in relation to this element of her complaint.

Competition forCNM 1, or CNM 2: 13 December 2018

The complainant originally asked the respondent to delay the interview for a month, then for a week, as she was attending to her gravely ill father-in-law in India. Ultimately the respondent offered her a skype interview to take place three days after her arrival in India. The respondent advised that as Christmas was approaching, they had to be mindful of the unavailability of interviewers. The complainant chose not to take up that option. The respondent proceeded with the interview. The complainant did not participate in the interviews.

While this may have been disappointing and disruptive for the complainant, that is not enough to show that this was discrimination on the grounds of race given that the complainant failed to produce a candidate of a different race to her own whose interview was postponed in the same or similar circumstances facing the complainant. She did advise of previous postponements of 2 weeks, and that benefited herself, but that was due to the unavailability of the candidates due to their own sick leave. The complainant has failed to provide evidence of discrimination as opposed to a failure to adjust interviewing schedules, which, given that the outcome resulted in the appointment of two Indian nurses and one Irish nurse to these three positions is hardly evidence of discrimination.

Hence, she cannot rely on the fact that she is part of a protected group.

The complainant has failed to meet the three tests set out in Minaguchi.

Therefore, the complainant has failed to raise a prima facie case of discrimination in relation to this element of her complaint and it cannot succeed.

Competition for CNS Cystic Fibrosis, March 2019

The respondent chose not to appoint the complainant to this post, selecting an Irish nurse instead.

The complainant is protected as she is an Indian national. The successful appointee was Irish.

She was treated less favourably than an Irish candidate who was appointed to the position.

Was the treatment less favourable due to her race?

The respondent identified the competencies required for this position prior to interview. The respondent submitted the scores based on a set of competencies under which all four interviewees were tested.

The successful appointee scored 92% at interview as compared to the 57% scored by the complainant which ranked her third of the four candidates who were ultimately interviewed. The complainant contends that she is more qualified for the position than the successful candidate. But under the criteria used by the respondent, namely, an ability to carry out change management, staff management and professional development, leadership, communication skills, ability to maintain a high professional standard, resource and budgeting skills - criteria identified as functions essential to this post- that was not their conclusion.  The selection committee were not saying that she lacked these competencies but that she failed to convince them as to how her professional qualifications and lengthy experience which the complainant believed should be the determining factors for promotion translated into a superior ability to meet these competencies relative to another candidate for the post.

The Labour Court in Moore Walshe v Waterford Institute of Technology addressed their scope to dig into the criteria and marks awarded under same. They stated that based on the evidence

“the Court is satisfied that the interview board was properly constituted and conducted its business in line with accepted good practice. Where this is found to be the case, and in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the interview board.

On the evidence adduced the complainant has not established to the satisfaction of the Court that the marks awarded by the interview board as between her and the successful candidate were irrational or unfair. Moreover, the Court is satisfied that the interview board were entitled to take the view that the successful candidate’s qualifications were superior to the acknowledged excellent qualifications of the complainant.

The respondent was not obliged to use professional qualifications and lengthy experience as the determining factor in selecting the candidate.

 Based on the evidence submitted, I can find no discriminatory criteria or criteria that would favour an Irish candidate and act to the detriment of a candidate of a different racial background

I do not find that the fact that the interview panel for this competition included members of a previous panel, the results from which formed the basis of previous complaints submitted by the complainant under the Employment Equality Acts 1998-2015, some of which are currently with the Labour Court, to be evidence of discriminatory intent, as contended by the complainant. At the time of the interview no decision had issued from the WRC upholding the complaints.  It may not have been the wisest move on the part of the respondent, but it is a stretch to deduce that the inclusion of some of these same interviewers is indicative of discriminatory intent or could lead them to unwittingly discriminate against the complainant on the grounds of race.

Neither is the low level of interest exhibited, reportedly, by one interviewer necessarily indicative of discriminatory intent as opposed to poor manners or poor interviewing skills.

The complainant pointed to the respondent’s guidelines for interviewers, dated 15/3/2019, as evidence of the potential for discrimination against her. These guidelines stated 

“ Note any incidents that occur e.g. somebody asks a question that may be discriminatory in nature- record details factually- don’t record your opinion, also

Avoid recording any of the following any comments that may be discriminatory in nature”.

This complaint is about the alleged discrimination of this complainant relative to a person of a different racial background as opposed to guidelines that apply to all candidates and don’t single out discrimination on the grounds of races. The complainant supplied no evidence of any question or comment uttered at the interview which she considered to be discriminatory. Had she done so these guidelines might be relevant to her complaint.

 It was an understandably unwelcome outcome for the complainant, even more so as it was a repetition, but that does not make it an act of discrimination on the grounds of race.

 The Labour Court in the case of Rescon Limited v Scanlan 2, EDA 085/2008 held:

"In this case the Complainant has adduced no evidence to establish a nexus between his

gender and the Respondent's failure to offer him the disputed post other than that a

woman was appointed and he was not. In the Court's view a mere difference in gender

and a difference in treatment, in the sense that the Comparator was appointed and the

Complainant was not, could never in itself provide a sufficient evidential basis upon which

to raise a presumption of discrimination."

I find that the complainant has failed to establish a nexus between the respondent’s failure to promote her and her race. The complainant has failed raise a prima facie case of discrimination in relation to this competition of March 2019.

As the complainant has failed to establish facts from which discrimination based on grounds of race can be inferred in relation to the three competitions which fell within the statutory limit, I find that her claim cannot succeed.

I do not have jurisdiction to consider the complaints which concern instances of alleged discrimination which the complainant maintains are part of a continuum and which occurred prior to the 28/9/2018.

Complaint of Victimisation.

The complainant stated that the acts of victimisation included: 

the failure of the respondent to panel her in the competition of September 2018 and in March 2019 because she had lodged complaints under the Act against the respondent in February and March 2018,

the failure of the respondent to supply another Dublin hospital with the necessary information about the complainant in June 2018 when she was applying for a job in that hospital,

her experience with the Occupational Health Department.

Relevant law.

Section 74 (2) of the Act provides that:

 (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

In Moriarty v. Dúchas DEC-E2003-013 the Equality Tribunal emphasised that the act which results in victimisation must be connected to a reliance on rights set out in section 74(2) of the Employment Equality Acts.

The Labour Court in the case of Department of Defence v Barrett EDA 1017, interpreting section 74(2), set out the obligations which a complainant must meet in order  to succeed in a complaint of victimisation:

“1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

Application of the law to this complaint of victimisation.

The complainant meets the first limb of the above test in that she submitted a complaint of discrimination to the WRC on 23 March 2018 in respect of failure to promote her in promotional competitions.

The adverse treatment.

It is necessary to consider the examples of adverse treatment supplied by the complainant.

The failure of the respondent to panel her in the competition of September 2018, December 2018, and March 2019 because she had taken complaints under the Act against the respondent.

The panelling or otherwise of a candidate is a fate that awaits all applicants for a position irrespective of their race. The complainant was unable to show the placement on a panel of a candidate of another race scoring the same or similar marks to herself and who had failed to reach the score of 70 for placement on a panel. The complainant maintains that because she was previously panelled in 2103 and 2015, the absence of same in 2018 and 2019 amounts to adverse treatment. But she was not panelled in December 2017 and by then had submitted a complaint of discrimination in December 2016.

Based on the evidence I do not consider this to be an example of adverse treatment as provided for in section 74 (2) of the Act.

The failure of the respondent to supply another Dublin hospital with the necessary information about the complainant in June 2018 when she was applying for a job in that hospital.

The complainant succeeded in being appointed to a position in this Dublin hospital so the respondent’s failure to provide the hospital with the information in a timely manner did not result in any detriment for the complainant whatever about an inconvenience.

Her experience with the Occupational Health Department.

The complainant’s interactions with the Occupational Health Department prior to 3 April 2018 were decided upon in ADJ- 00013621, a decision on appeal to the Labour Court.

My preliminary findings on the jurisdictional points on page 2 of this decision record that the complainant’s interactions with the Occupational Health Department post 3 April 2018 will be addressed in ADJ-00024529.

Hence, I cannot consider if it amounts to an instance of adverse treatment in this decision.

 I find that the complainant’s evidence fails to prove that she has been victimised by the respondent in contravention of section 74(2) of the Act.

I decide that the complainant has failed to establish facts from which discrimination based on grounds of race can be inferred. Her complaint cannot succeed.

 I do not find that the complainant has been victimised by the respondent in contravention of section 74(2) of the Act.

 Race discrimination; complaint not upheld. Victimization; not upheld.