Complainant

Respondent

Parties

Daniel  Cummins

The National Drug Treatment Centre (Hse) / HSE Community Operations at Dr Stephen’s Hospital

Representatives

Self-Represented

Central HR Dept Manager

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-00060551-001

15/12/2023

The Complainant alleged Discrimination against him on the Age and Selection for a Position Grounds. In his Complaint form he referred to the issues of the relevance of the Management insistence on a HCCA level 5 qualification for the position for which he had applied.

The Complainant began in the position on the 6th June 2020 and at the date of the Hearing was still in the employment.

The rate of pay was at the national HSE General Assistant rate – an 8-point scale running from €34,139 to €40,719.

The working hours varied from 3.50 hrs to 15 + hours depending on circumstances.

The Complainant gave an Oral Testimony supported by an extensive selection of copy e mails between the main employer, the NDTC and the Recruitment Agency CPL subcontracted by the HSE to handle Recruitment competitions.

The Complainant had commended employment in the General Assistant role on a part time basis in July 2000. He worked mainly at weekends as Relief cover for Permanent staff at the NDTC – a very challenging role. This had been acknowledged by the Management. There had never been any complaints over 20 years’ service regarding his work standards or his attendance.

In April 2023 two permanent General Assistant Positions were advertised via the recruitment company CPL, acting as Agents for the HSE. A preliminary requirement was for candidates to hold a HCCA Level 5 qualification. The Complainant does not hold such a qualification and he believes that the majority of long-established General Assistants do not, also, hold this qualification. As an aside the Complainant holds a general business Degree from Dundalk IT. He felt some of the Degree Modules would be equivalent to or better than a HCCA level 5.

He sought the assistance of his Union to raise the matters with the local HSE Management but to no avail. He then sought the assistance of the WRC Adjudication Service.

His claim is that the effectively blanket insistence of the HCCA Level 5 by the HSE is completely discriminatory against long serving staff such as himself who have clearly displayed the ability to carry out the role to everyone’s complete satisfaction over 22 years. It is completely Discriminatory on Age Grounds as most long-standing staff would be much older than potential new recruits and much less likely to have achieved qualifications such as the Level 5. The fact that no allowance was made for his exemplary service in the role was further evidence of Discrimination.

The Respondent was represented by a Senior HR manger, Ms B and a Senior Operational Manager, Mr E. They gave an Oral Testimony supported by a comprehensive Written Submission.

In their arguments they referred to extensive EEA 1998 sections and case law to content that the Complainant’s case could not succeed as it failed to meet the basic requirements of the Act and in particular Section 85A -the Burden of Proof section. No realistic Comparators were suggested by the Complainant and references to other staff were mere conjecture.

The requirement for a HCCA Level 5 course had been well canvassed at all levels in the HSE and was well known to the Complainant. There were many Training opportunities provided to HSE Employees, but it appeared that the Complainant had not been available to participate. It could not be argued that a requirement for a Level 5 HCCA was in any way discriminatory.

His Qualification from Dundalk institute of Technology was of a general Business Nature and not transferrable / equivalent to the HCCA Level 5 qualification.

All recruitment competitions subcontracted to CPL were under well agreed and fully published national frameworks which all had Appeal mechanisms. There was absolutely no suggestion of anything amiss in these competitions.

In summary the complaint lacked any realistic basis and no grounds existed to allege that the requirement of HCCA Level 5 was in any discriminatory.

3:1        General discussion.

In general discussion of this Complaint between the Parties and the Adjudication Officer it became clear that initially the Complaint would not be sustainable on a strict direct Discrimination basis.

Section 6, Section 8 and Section 28 of the EEA Act,1998 were cited correctly by the Respondent.

However, in discussion and questioning based on previous circumstances in other direct HSE and HSE funded Agencies it was clear that the overly strict requirement for the HCCA Level 5 had given rise to a lot of local operational issues particularly where existing staff of long and exemplary service were disadvantaged by not having the Level 5. Nursing Homes in rural locations were particularly prone to this problem.  It was suggested, based on direct experience, that many of these operational issues had been “resolved” by local Managers finding “fixes” to keep older experienced staff in place while the HCCA Level 5 issue was resolved by extra Training or Special Local Courses.

The Trade Unions and the HSE central management were obviously anxious to improve standards across the entire organisation. However, it had from time to time, out of necessity, required both sides to adopt the “Nelson Eye” in certain local situations where the only realistic option in keeping a Facility operational was keeping experienced older staff in place. Facilities could be adopted to achieve the HCCA Level 5 on a phased in basis later.

Taken from a viewpoint of “Indirect Age Discrimination” the Level 5 HCCA policy as applied to older staff was certainly open to serious review.

In Bolger, Bruton and Kimber “Employment Equality Law” Round Hall 2012 at Section 8 -87 the following quote is interesting.

“8-87    Any provision or practice, such as for example a selection criterion, a contractual provision or a Company practice which places persons of particular age at a disadvantage as compared with persons not that age will therefore result in a finding of discrimination against the employer unless the employer can prove that it has an objective reason for the provisions.” Page 404

In addition, as in all Legal issues the particular local context of the complaint has to be given due consideration.

3:2      Local Issues

The location of the employment was a very well know Dublin City Centre Drug and Addiction centre. To say it was a challenging work location would be an understatement. In discussion at the Hearing this was accepted. The Complainant had worked there for in excess of 22 Years without complaint. He was a long-term part-time worker with it was acknowledged, invaluable experience.

His argument that the rigid insistence on the HCCA Level 5 and the effective ignoring, in his view, of his twenty-two years unblemished service is hard to rebut by the Employer. Part of the complexity was the outsourcing by the HSE of the Recruitment Process to CPL who would have little knowledge of operational issues. The CPL process initially involved what was called a “Sifting” of Applications more than likely by a bespoke IT Recruitment Programme. Naturally the system immediately and it appeared automatically rejected the Complainant as he did not have the HCCA Level 5.

The key Adjudication question was to take a view on whether on not this was possibly Discriminatory on the Age Grounds or “Other Recruitment Grounds” headings under the 1998 EE Act.

In the Respondent’s evidence it was pointed out that the HCCA 5 requirement could not have come as a surprise to the Complainant. It was well known, and he had been non selected on a previous occasion on similar grounds. He had also proved difficult to schedule, for his own reasons, on various Training Courses that might have addresses the situation.

In the Complainant’s favour was the argument that he had repeatedly petitioned, to no avail, his Trade Union to examine the case. The Union was not present at the Hearing although copy e amils were exhibited by the Complainant.  The question of Appeals made /not made by the Complainant under the Nation HSE Recruitment Policy was also very unclear to the Adjudicator.

3:3      indirect Discrimination

The question is then of determining if indirect Discrimination took place – Sections 21 and 22 of the Act need to be considered.

A key Respondent question is what were the

“Objective justifications and Legitimate Aims and whether or not the means of achieving that aim are appropriate and necessary” Section 22 (b).

The Adjudication view, after considering the Oral testimonies and the Written materials, was that the rigid insistence on the HCCA Level 5 at an outside Recruitment Agency sub-contractor which resulted in 22 years very challenging work experience being discounted could only open the Respondent to an indirect Discrimination claim on both the “Age” and “Other Grounds”. A “one size fits all” policy such as the HCCA Level 5 for all General Assistants across such a large Organisation as the HSE is inevitably going to give rise to complaints such as the one in this case.

Acknowledging that the quoted emails were unclear it appeared possiblethat a possibly more energetic engagement between the Union and Management in the very unique circumstances of the case might have averted the WRC referral.

Accordingly, the Adjudication finding has to be that the Respondent could not rebut the complaint that Indirect Discrimination, albeit possibly inadvertently, had taken place.

A finding of Indirect Discrimination on the “Age” and “Other” Grounds has to be made.

Indirect Discrimination, Required Qualifications for Positions.