Ms Joan Cowan (Represented by the Irish Nurses Organisation) vs North Western Health Board
The dispute concerns a complaint that the North Western Health Board discriminated against the complainant on the grounds of religion and gender contrary to the provisions of the Employment Equality Act, 1998 in the filling of a post of Clinical Nurse Manager Grade II at Letterkenny General Hospital.
2.1 The complainant is employed as a Clinical Nurse Manager Grade I (CNM I) at Letterkenny General Hospital. The dispute concerns the filling of a promotional post at Clinical Nurse Manager Grade II level. The post was initially advertised internally but the advertisement was withdrawn and a male candidate, who is of a different religious belief to the complainant, was appointed from an existing panel without a new competition being held. The complainant believes that she was discriminated against on the grounds of her religious belief and gender.
2.2 The Irish Nurses Organisation (INO) referred a complaint to the Director of the Equality Tribunal on behalf of the complainant on 29th January, 2003. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, an Equality Officer, for investigation, hearing and decision on 16th April, 2003 and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a hearing of the complaint was held on 14th May, 2004. Further statistical information was provided by the parties subsequent to the hearing culminating in correspondence from the INO on 23rd June, 2004.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant is employed as a CNM I in the Medical 3 ward at Letterkenny Regional Hospital. The INO states that prior to the disputed appointment it was custom and practice at the hospital that short term vacancies at CNM II level would be filled by the appointment on an acting up basis of the CNM I on that ward while long term vacancies would be advertised and filled by competition. A long term vacancy arose in the complainant's ward and was advertised internally at the hospital on 26th June, 2002. However the advertisement was subsequently withdrawn and a CNM I from another ward was appointed to the position. The complainant refers to a discussion which she had with the Unit Nursing Officer on 1st July, 2002 in which she was asked if she was applying for the CNM II position. Later that day the Unit Nursing Officer contacted her and informed her that the advertisement had in fact been withdrawn and that the post was to be filled from an existing panel. The appointee had previously applied for a CNM II post in another ward and although not appointed on that occasion, was placed on a panel of successful candidates which was to have a lifetime of one year expiring on 1st May, 2003. The INO questions the fairness of the procedure followed whereby a candidate for a vacancy in another ward is appointed to a vacancy in the complainant's ward and states that the advertisement for the earlier vacancy did not refer to the creation of a panel. The complainant referred a complaint through the internal grievance procedure but the appointment was upheld.
3.2 The INO argues that the normal custom and practice was set aside in the present case only to be reaffirmed by management in a circular to all departments in November, 2002 (Appendix 1). The INO states that the appointee is male and of a Roman Catholic background. The complainant is Protestant and the INO states that Protestants constitute 5% to 10% of the local population. The INO argues that normal custom and practice was set aside so that a male candidate of the dominant Catholic religion be appointed, denying the complaint the opportunity to compete for a post for which she was eminently qualified having worked for 15 years in the Medical 3 ward and just over a year at her present CNM I level at the time of the appointment. The INO states that the complainant was previously appointed on two occasions on an acting up basis to CNM II level when the CNM II was absent. The INO referred to the Labour Court in Midland and Western Health Board v Fitzgerald1 and the Equality Officer in Burke v South Eastern Health Board2 where preferential treatment of males was found to have occurred in promotional nursing appointments by health boards.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent argues in the first instance that the complaint, which was received at the offices of the Director on 29th January, 2003, is out of time insofar as it concerns any alleged discriminatory treatment taking place more than six months prior to that date and that no application was made by the complainant to the Director that exceptional circumstances prevented the timely referral of the complaint. The complaint form refers to the most recent occurrence of the act of discrimination as 7th October, 2002 and the respondent states that this incident i.e. a meeting between management, the complainant and the INO is the only incident within the six month time limit.
4.2 The respondent states that an acting post of CNM II on the Medical 3 ward was advertised on 26th June 2002 but was withdrawn two days later when the personnel staff at Letterkenny General Hospital realised that a valid permanent panel with an expiry date of 1st May, 2003 was in existence. The next candidate on the panel was appointed to the Medical 3 post on 8th July, 2002. The respondent states that a policy exists at the North Western Health Board (NWHB) that where a panel exists and is appropriate to the vacancy in question then the panel must be the first mechanism for appointment. The first appointment from that panel was female. Regarding the discussion which took place between the Unit Nursing Officer (UNO) and the complainant on 1st July, 2002, the respondent states that the UNO had returned from leave on that date and was unaware when she first spoke to the complainant that the advertisement had been withdrawn. When she later learnt about the change, she informed the complainant, as a matter of courtesy.
4.3 Following the disputed appointment, a meeting took place between management and the complainant on 15th July, 2002 followed by two further meetings on 23rd September and 7th October, 2002 at which INO representatives were present. The INO had proposed that a CNM II post in the Medical 3 ward be 'ring fenced' however having considered the matter, management concluded that this would not be possible. The respondent denies that normal custom and practice was suspended in the complainant's case and furthermore points out that the Director of Nursing and the Unit Nursing Manager were unaware of the complainant's religious background. The respondent also states that the earlier advertisement for CNM II posts published in 2001 (Appendix 2) from which the appointee was paneled, does state, contrary to the INO contention, that panels would be created and that the complainant disadvantaged herself by not applying for promotion on that occasion. The respondent also states that the complainant was not acting up to CNM II level on two previous occasions as stated in her submission but received an allowance retrospectively on one occasion when the CNM II was absent for a number of weeks. The respondent states that it has apologised to the complainant for the inconvenience caused by the withdrawal of the advertisement for the CNM II post in the Medical 3 ward but vehemently denies that it was motivated by factors connected with the complainant's gender or religious beliefs in the manner in which the vacancy was filled or that the complainant has presented prima facie evidence of discrimination.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter for consideration is whether or not the respondent discriminated against the complainant on the grounds of her gender or religious belief in terms of Section 6(2) of the Employment Equality Act, 1998 and contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 The first issue to be addressed is whether or not the complaint concerning the complainant's failure to be appointed to the CNM II position was referred within the six month time limit laid down in the 1998 Act. I note that the complainant became aware on 1st July 2002 that the advertisement had been withdrawn. The male CNM I was appointed to the CNM II position on 8th July, 2002. While three meetings took place subsequent to this date at which the complainant and the INO sought to resolve the matter with management, I am guided by recent Equality Officer decisions where it was found that the date of the interview, or the date of the notification of the outcome of the decision constituted the substantive and most recent act of discrimination and refer also to my decision in Mc Dermott v Sligo Grammar School3 in this regard. In the present case the complainant was informed on 1st July, 2002 that the proposed competition was not going ahead and that the position would be filled from an existing panel. I consider that the communication of this decision to the complainant constituted the substantive act on which the allegation is based and was the most recent act of discrimination for the purposes of the Act. As the complaint was not referred within six months of that date and as the complainant did not apply to the Director in accordance with Section 77(6) of the 1998 Act that exceptional prevented a timely referral, I must conclude that the referral was out of time. Having heard the evidence in the case, I will however, for the avoidance of doubt, decide the substantive issue below.
5.3 The present complaint and hearing predates the enactment of the Equality Act, 2004 which extends the principle of the burden of proof to all of the discriminatory grounds. However insofar as this complaint concerns the religion ground I shall be following the well established principles adopted by the Labour Court in relation to non-gender grounds (see McDermott v Sligo Grammar School ibid). It is for the complainant in the first instance to establish prima facie evidence from which it may be presumed that discrimination has taken place.
5.4 Having heard and considered the evidence in this complaint, I am of the opinion that the dispute was an industrial relations dispute concerning the procedural rules for the filling of vacancies at the hospital where a panel already existed and had little if anything to do with perceived discrimination on the gender or religion grounds. The Director of Nursing gave evidence that when he met the complainant on 15th July, 2002 after the appointment was made there was no mention of discrimination on the gender or religion grounds. The INO offered no evidence, other than reference to the perceived procedural shortcomings in the way the appointment was made, to suggest that the complainant was the better qualified or more suited candidate for the position than the appointee. I note that the first candidate to be appointed from the particular panel to the vacancy in the Medical 1 ward was female and when I asked the complainant had she ever felt over her 15 years in the ward, prior to the present complaint, that her religion was an issue with management or colleagues and she said that she had not experienced any unfavourable treatment on account of her religion.
5.5 The complainant's case relies on the fact that management, having first advertised the vacancy in the Medical 3 ward, two days later withdrew the advertisement and appointed the next candidate from an existing panel. The complainant argues that that particular panel arose from a vacancy in the Medical 1 ward and should not have been used to fill a vacancy in her ward. She did not apply for the post in Medical 1 at the time as she did not wish to work in that ward. In the course of the hearing I asked the respondent for recent figures in relation to the gender of recent promotional appointments at the hospital. Figures subsequently presented by the respondent showed that 47 out of 54 promotional appointments since the year 2000 were to females however no gender breakdown for numbers serving in the particular grades was provided. The INO however responded that 5 of the 15 or 33% of Director of Nursing posts in the NWHB region are held by males as against the 9% national male level of representation in nursing. No comparable statistics by religious belief for the relevant grades were available. The statistical information was of little benefit in relation to the case before me and I found no evidence that the respondent's decision to withdraw the advertisement and to fill the vacancy from an existing panel arose from anything other than an administrative error in advertising the post in the first place. I am satisfied that the complainant has failed to establish any prima facie evidence on which a presumption of discriminatory treatment could be based.
6.1 On the basis of the foregoing, I find that the
- the referral of the complaint by Ms Cowan against the North Western Health Board on 29th January, 2003 was out of time
- for the avoidance of doubt, North Western Health Board did not discriminate against the complainant on the grounds of her gender or religious belief in terms of Section 6(2) of the Employment Equality Act, 1998 contrary to the provisions of Section 8 of that Act in the filling of a post at Clinical Nurse Manager 1 level.
6th December, 2004
North Western Health Board Memo on policy in relation to acting Clinical Nursing Manager Appointments
Advertisement of 16 December, 2001 for previous CNM II post
1Midland and Western Health Board v Fitzgerald , Labour Court DEE-032-03
2Burke v South Eastern Health Board DEC-E-2003-014
3Ms Elayne McDermott v Sligo Grammar School DEC-E-2002-057