EDA2415

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00042623 (CA-00053125-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 18 August 2023. A Labour Court hearing took place on 2 April 2024.

The following is the Court's Determination:

DETERMINATION:

This is an appeal by Mr Paulinus Okafur (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00042623, dated 12 July 2023) under the Employment Equality Act 1998 (‘the Act’). The Adjudication Officer decided that the Complainant’s claims of gender and race discrimination were not well-founded. Notice of Appeal was received in the Court on 18 August 2023. The Court heard the appeal in Dublin on 2 April 2024.

At the commencement of the appeal, the Complainant withdrew his complaint of gender discrimination. His Counsel told the Court that the complaint of discrimination on the race ground related to the process applied by the Health Service Executive (‘the Respondent’) in the course of filling the post of Chief Scientific Officer in the Blood Transfusion department. The Complainant was ultimately successful in securing appointment to the post.

The Complainant articulated his claim as follows in the narrative section of his originating complaint form submitted to the Workplace Relations Commission:

“I have been passed over for promotion while my Irish colleagues were promoted. One lady in particular who had lesser qualifications than me was promised the promotion when she acquired the qualifications while I on the other hand would have to compete for the role. I sent an official complaint to management using WRC form ES1. Since then, Management have retrieved the promotion and given it to me. I took the contract to my Manager to confirm that the contract I got is exactly the same as was given to the others over 4 months before. HR confirmed that it is the same contract across the board. How easily it was to be overlooked has upset me. It has knocked my self-confidence and impacted my relationships, especially the relationship with the colleague from whom this promotion was retrieved – none of which is my fault.”

The Factual Matrix

The Complainant, who is of Nigerian origin, has been employed as a Medical Scientist at Our Lady of Lourdes Hospital, Navan since 1 March 2004. He was employed initially as a Basic Grade Medical Scientist but with effect from 7 July 2014 was promoted following competition, on a part-time and temporary basis, to the role of Senior Medical Scientist in the Blood Transfusion department. Prior to the Complainant’s appointment, the role of Senior Medical Scientist in Blood Transfusion was covered by two colleagues (JM and KC) on a job-share basis. The Complainant’s appointment arose from JM’s long-term absence on sick leave. The Complainant continued to perform his substantive role for the balance of his contracted hours.

JM resigned her position in Blood Transfusion in 2018. The Complainant was appointed to the Senior Medical Scientist role in that department on a full-time and permanent basis by way of regularisation, without the need for interview, as he had been in the role (albeit on a part-time basis) for four years. The Complainant also assumed responsibilities for IT Co-ordination for the entire hospital laboratory during this time. KC continued to work in Blood Transfusion department, initially in a part-time capacity but converted to full-time from March 2020.

In or around April 2021, it became known amongst staff in the laboratory service, that approval was imminent for the filling of four posts at Chief Medical Scientist level, i.e. one post in each of the following departments: Biochemistry, Haematology, Blood Transfusion and Microbiology. Those posts were to be filled in accordance with the terms of a 2003 agreement (‘the Agreement’) between the Health Services Employers Agency and the Medical Laboratory Scientists Association (‘the MLSA’).

It appears that there was no issue in filling the posts available in the Biochemistry, Haematology and Microbiology departments as there was only one Senior Medical Scientist in each of those departments and they each met the criteria for promotion specified in the Agreement. However, as noted above, there were two Senior Medical Scientists employed in the Blood Transfusion department. KC had been in situ there since 2005 and – applying one provision of the Agreement - arguably appeared to be appropriately considered for promotion on the basis of having been “in overall charge” of the department. She did not, however, hold a Master’s degree as required by the Department of Health and Children for appointment at that level whereas the Complainant had completed a Master’s degree (Coleraine – University of Ulster, 2010). The Laboratory Manager, Mr O’Hare – based on his then incomplete knowledge of the history of the Complainant’s appointment as Senior Medical Scientist in the Blood Transfusion department– formed the view that the post of Chief Medical Scientist in that department would have to be filled by way of confined competition, in line with the Agreement. He set out his views in this regard in an email to the head of Human Resources dated 1 April 2022. He identified two colleagues who were eligible to participate in that confined competition – the Complainant and OD.

The Complainant was on annual leave in April 2022 and was informed of this proposal by Mr O’Hare in May 2022. He was unhappy with the proposal as he believed he was entitled to be appointed on the basis that he both held the necessary Master’s qualification and had been deputy lead in the Blood Transfusion department. Mr O’Hare requested the Complainant to prepare a written account of the roles he had performed in the department and to seek the advice of his union, the MSLA. Meanwhile, both KC and OD also sought to progress their positions. KC approached HR to advise 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 complete a Master’s degree within a specified period following appointment. OD expressed her wish to be permitted to partake in a confined competition for the promotion.

In July 2022, Mr O’Hare conducted a full review of the Complainant’s personnel records from which he learned for the first time that the Complainant had interviewed for the post of Senior Medical Officer in 2014 and had been appointed on a part-time basis (0.5 WTE) to the Blood Transfusion department at that time. Mr O’Hare determined that this could be viewed as the Appellant having shared the Department Lead responsibilities with KC and deeming him eligible for appointment as Chief Medical Scientist in the department, as per the terms of the 2003 Agreement. A meeting took place on 2 August 2022, attended by the Head of HR, Mr O’Hare and the Complainant where the latter was advised that he was eligible for appointment as Chief Medical Scientist in the Blood Transfusion department and offered the position. This was formally confirmed by the Head of HR by letter dated 3 August 2022. On 17 August 2022, the Complainant accepted the offer of promotion and was retrospectively appointed with effect from 21 March 2022.

Summary of the Complainant’s Evidence

The Complainant firstly outlined the history of his employment with the Respondent, commencing in 2004. He also gave details of his professional qualifications: he holds a Bachelor of Medical Laboratory Science degree (BMLS) from Imo State University Owerri, Nigeria and an MSc in Biomedical Sciences from the University of Ulster, Coleraine.

The Complainant then told the Court how he had become aware, on 29 April 2022, that two of his colleagues were celebrating their promotion to Chief Medical Scientist. It appears he had been generally aware since approximately April 2021, that sanction to make a number of promotions to that grade was imminent, it had come as a surprise to him to learn of his colleagues’ promotion. He went to speak with Mr O’Hare, in or around that time, and his recollection is that Mr O’Hare told him that he would have to compete in a confined competition with Ms OD for the position in the Blood Transfusion department. He found this unusual because he did not believe that Ms OD held the grade of Senior Medical Scientist, nor did she work in Blood Transfusion. According to the Complainant, Mr O’Hare advised him to speak to his trade union. He followed Mr O’Hare’s advice and was informed by his union representative that the latter would contact Mr O’Hare about the situation. He says he then learned that Mr O’Hare had, in the meantime, reviewed his personnel file and formed the view that he was eligible for appointment and should prepare a portfolio of his work history in the Blood Transfusion department to facilitate Mr O’Hare in advancing his case. He then went on the tell the Court that Mr O’Hare reverted after that to query whether or not KC could be regarded as having been departmental lead. The Complainant’s recollection is that he went on annual leave shortly after this and when he returned from leave he says Mr O’Hare called him into his office to tell him that a decision had been made to promote KC and to allow her 5 years to obtain a Master’s degree.

On or around 6 June 2022, the Complainant approached the human resources department where he spoke to Ms GK and repeated what he had been told by Mr O’Hare and complained that he was being discriminated against. His recollection is the Ms GK reverted to tell him that his complaint had been escalated to the Human Resources Manager. The Complainant’s evidence then was that he heard nothing further about the matter for a period of five to six weeks but completed and submitted a Form ES1 on 19 July 2022. This, he says, prompted a meeting with the Human Resources Manager, Mr O’Hare and himself on 2 August 2022 at which he was offered the position of Chief Medical Scientist in Blood Transfusion.

Under cross-examination, the Complainant confirmed that although he was formally appointed as Chief Medical Scientist in August 2022, his appointment and salary were backdated to 21 March 2022.

Evidence of Mr Ray O’Hare

The witness told the Court that he is currently the Laboratory Manager at Our Lady’s Hospital, Navan. He outlined the reporting structures within the hospital laboratory service and gave an overview of the staffing levels and the ethnic diversity of staff employed there. The witness went on to summarise his understanding of how the Complainant’s career in the laboratory service had progressed through the latter’s promotion to the grade of Senior Medical Scientist (0.5 FTE) in 2014 and his subsequent regularisation on a full-time basis in 2018. The witness spoke very highly of the Complainant’s contribution to the laboratory service and mentioned, in particular, the willingness he displayed in 2018 to take on the additional role of IT Co-ordinator for the entire laboratory.

The witness also gave an account of his interactions over the years with KC and set out the reasons why he had viewed her as the ‘go-to’ person in Blood Transfusion. He said that the she had returned to working on a full-time basis in 2020 and, at that time, led significant change in the Blood Transfusion department.e.g. by leading on the tender process for new instrumentation. The witness’s evidence was that in April/May 2022 he believed that KC was in overall charge of the Blood Transfusion department.

The Respondent’s Solicitor referred the witness to an email dated 1 April 2022 which he had authored and in which he advised the Human Resources department of his view that the 2003 Agreement required that a confined competition between the Complainant and OD should take place before the post of Chief Medical Scientist in Blood Transfusion could be filled. The witness told the Court that, contrary to what the Complainant had earlier stated, Ms OD held the grade of Senior Medical Scientist.

The witness’s evidence then moved to his recollection of events of 3 May 2022. His evidence is that the Complainant came to his office on that day and acknowledged that KC was the departmental lead and said that he would not contest her appointment as Chief Medical Scientist if she had a Master’s degree. According to the witness, the Complainant also told him that he would not participate in in a confined competition with Ms OD but would take a legal case. The witness said that he advised the Complainant to take advice from his trade union and also read the relevant paragraphs of the 2003 Agreement to him. The witness said that he then contacted the union directly himself to seek clarification of the union’s interpretation of ‘department lead’ as used in the Agreement. On receipt of that advice, he said, he formed the view that he could support the Complainant’s application for promotion and bring his case forward.

The witness told the Court that he was aware that two other staff members – KC and OD – were both also very upset about the issue of the appointment to the post of Chief Medical Scientist. He said KC felt very strongly that she had led strongly on quality and accreditation issues since 2008 and, in doing so, had worked many undocumented additional hours. She too had received advice from the union and was being supported in her case by the union. The witness also said that OD strongly believed she should be permitted to participate in a confined competition for the post. According to the witness, both KC’s and OD’s cases were brought to Human Resources but ultimately neither was upheld because the Complainant’s was the strongest case. The witness told the Court that the Complainant had been his preferred candidate from circa 6 May 2022 onwards based on the advice he himself had received from the trade union. The witness said he had no knowledge of the precedents that KC sought to rely on in advancing her case (i.e. that other appointees around the country were promoted without having a Master’s degree but given a specified period in which to obtain one).

The witness strongly contradicted the Complainant’s suggestion that KC had been offered the position of Chief Medical Scientist in June 2022. The witness’s version of the events of that time was that a proposal had been made by human resources to offer KC the role (based on the case she had been attempting to build using the precedents referred to above) and that he had informed the Complainant of this proposal. He said that the Complainant had undertaken to get advice on the matter and revert to him but that he had been on annual leave for a large part of July 2022 and during his absence the Complainant had submitted his Form ES1. The witness emphatically stated that KC had never been offered the promotion, was never given a contract of promotion and never received a letter of appointment.

On his return from annual leave in July 2022, the witness said the Complainant informed him that he had raised a grievance with Human Resources. It was at this time, according to the witness, that he first learned that the Complainant had been appointed Senior Medical Scientist in 2014 following a confined competition. This prompted the witness to review the Complainant’s full personnel file, he said. This copper fastened his belief, he told the Court, that the Complainant’s case to be appointed was the strongest case. He referred to the meeting of 2 August 2022 with Human Resources and with the Complainant. The witness said that he apologised to the Complainant at the meeting for his failure to complete his due diligence at an earlier stage.

Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, 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.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Decision

Having regard to the submissions of the Parties in this case, and the oral evidence adduced, the Court is of the view that the Complainant does not meet the burden of proof required by section 85A(1) of the Act. The Court, having given very careful consideration to the totality of the evidence adduced before it, is satisfied that the delay in filling the post of Chief Medical Scientist in Blood Transfusion was due entirely to a genuine confusion that arose in relation to the interpretation of the 2003 Agreement and the proper application of that Agreement to the circumstances not only of the Complainant himself but also to those of his colleague, KC. It is also the case, that Ms OD sought to advance her case to be permitted to participate in a confined competition for the post. It appears that the Complainant, KC and OD each had a stateable case and appear to each have been supported in making that case by their trade union. When all the relevant facts had been given due consideration by management in the light of the proper interpretation of the 2003 Agreement, the matter was eventually resolved in the Complainant’s favour in August 2022. He suffered no detriment arising from the delay as his appointment and salary were backdated so that he was deemed to have been appointed at the same time as the colleagues who had been similarly appointed in March 2022 to the post of Chief Medical Scientist in the other departments of the laboratory in Our Lady of Lourdes Hospital, Navan.

It follows, therefore, that the Complainant has not established any facts from which an inference that he was treated less favourably by the Respondent because of his race could be drawn. For this reason, the Court finds that the appeal does not succeed and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
25 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.