Flanagan (Represented by the Irish Nurses' Organisation) AND North Western Health Board
1.1 This dispute concerns a claim by Ms Ann Flanagan that she was discriminated against by the North Western Health Board on the ground of disability contrary to the provisions of the Employment Equality Acts 1998 - 2004 when she was unsuccessful at interview for the post of Paediatric Link Nurse Specialist. She also claimed she was victimised by the respondent.
1.2 The Irish Nurses' Organisation (INO), on behalf of the complainant, referred a claim to the Director of Equality Investigations on 20 December 2001 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 20 November 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision 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 joint hearing was held on 21 May 2004. Subsequent correspondence with the parties concluded on 17 January 2005.
2. SUMMARY OF THE COMPLAINANT’S CASE
2.1 The complainant qualified as a Registered Sick Children's Nurse (RSCN) in 1970 and as a Registered General Nurse (RGN) in 1972. She was employed as a staff nurse in the Paediatric Unit of Sligo General Hospital in 1974. In 1980, she completed a 16 week Neonatal Intensive Care course in Glasgow, and was subsequently involved in the development of a new Neo-Natal Unit within the paediatric service of the hospital. In 1999, the complainant sustained injuries in a road traffic accident, which resulted in her being unable to continue to work in the clinical field due to an ensuing disability which restricted load bearing and movement. Since that time, she remained on pension rate of pay.
2.2 In 2001, the respondent advertised a vacancy for a Paediatric Link Nurse Specialist at the level of Clinical Nurse Manager II (CNM II). The complainant said that she met the criteria and had all the relevant qualifications for the post. She said she would not have been inhibited by her disability in carrying out the duties of the post. She attended for interview on 2 July 2001, but was informed on 9 July that she had been unsuccessful.
2.3 The complainant said the interview board comprised three people: a retired Principal Tutor (Chairperson), a Community Paediatrician and the Unit Nursing Officer. The complainant said that the latter two interview board members knew of her disability and had visited her in hospital following her accident. The complainant said she was asked two questions at interview which led her to be suspicious of the interview process. The first of these was "Have you a clean driving licence?". The complainant said that possession of a driving licence was absolutely necessary and she had noted on her application form that she had a licence. She took the comment to be a veiled reference to her injury, sustained in a road traffic accident. The complainant said she was subsequently asked "Why haven't you updated your CV since 1999?". The complainant said her CV indicated that she was currently updating her IT skills, and she perceived the question as another reference to her injury, sustained in 1999.
2.4 The complainant said that she had experience and qualifications in both paediatric and neonatal nursing. She said that, to her knowledge, the successful candidate was qualified as an RSCN, but had lesser experience than she had and was without qualifications or experience in neonatal nursing. The complainant was provided with her interview results on 24 August. These results were:
Qualification and/or Experience 80 out of 100
Organisational Knowledge 75 out of 100
Professional Knowledge 70 out of 100
Special Aptitudes 63 out of 100
Special Circumstances 60 out of 100
Total 348 out of 500
2.5 As she believed she should have been appointed to the position, the complainant pursued her grievance through her representative union. She said a meeting was held with the respondent on 8 October 2001 where her grievance was discussed without resolution. The complainant said an undertaking was given that the position of the respondent would be clarified within the next few days, but no such correspondence was received. In the absence of this correspondence, the complainant referred her complaint to the Equality Tribunal.
2.6 The complainant said that the respondent subsequently victimised her in connection with a second post. This post, CNM II for the Neonatal Intensive Care and Special Baby Unit at the hospital, was advertised in June 2002. The complainant said she had the necessary qualifications and experience for the post and she would not have been inhibited by her disability in fulfilling the role. After submitting her application, the complainant was notified that she did not appear to be qualified for the position as she did not hold a Certificate in Neonatal Intensive Care. When the complainant queried this, she was requested to forward details of her qualification to the Personnel Department, although she said this document was already in the possession of the respondent. She said that she was subsequently offered an interview on 18 July following representations from her union.
2.7 Following the interview, the complainant was informed that, although she was a suitable candidate, there was only one post available and other candidate(s) had been placed higher. The complainant again requested her interview marks. These were as follows:
Qualifications 50 out of 50
Experience 20 out of 50
Organisation Knowledge 25 out of 50
Professional Knowledge 55 out of 100
Special Aptitudes 58 out of 100
Special Circumstances 30 out of 50
Total 238 out of 400
2.8 While her claim in relation to the second interview was that the initial refusal to consider her eligible constituted victimisation, the complainant said that there was a notable discrepancy between the marks awarded for what were equivalently graded posts, even taking into account the one-year time gap between the interviews.
2.9 The complainant said she had met with the Director of Nursing on several occasions to discuss her return to work. She said it had been suggested to her that she might take a staff nurse post outside the area of paediatrics and neonatology, suitable to her disability. She said this had included a post of X-ray nurse, which was described as not necessarily a nursing post. The complainant asserted that the Director of Nursing had never suggested that the complainant apply for the CNM II post, although it had been advertised generally. The complainant also claimed that she had sought to apply for a management course, but was advised she could not do so until she returned to work.
2.10 The complainant said she sought:
(i) a declaration that the respondent discriminated against her;
(ii) an order that she be allocated the first available Neonatal/Paedriatric Specialist or CNM II post which arose, subject to it being suitable to her disability; and
(iii) compensation for the distress and anxiety the discrimination had caused her.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent acknowledged that two members of the interview board for the post of Paediatric Link Nurse Specialist were aware of the complainant's disability and had visited her in hospital at the time of her accident. It sadi this was common practice in acute hospital settings, but denied absolutely that this information was used in any way to discriminate against her and denied that her disability was in any way referred to at the interview. The Chairperson of the interview board was not aware of her disability or her absence from work since 1999, as her application form indicated she was still actively employed in the hospital.
3.2 The respondent rejected the claim that the two questions to which the complainant objected were in any way references to her disability. The question regarding possession of a driving licence was put to all candidates as it was a prerequisite to carrying out the duties of the post. The question was not on the application form, as it is not always a core component of jobs with the respondent. Where relevant, it is asked at interview. The respondent also denied that the complainant was asked about updating her CV in the adversarial manner suggested. It said that a question about further courses or additional study was posed by the Chairperson as it was not clear from the professional section of the complainant's CV if she had undertaken such courses. The respondent contended that ongoing education was an essential criterion for the post.
3.3 The respondent said that the qualifications for the Paediatric Link Nurse Specialist post were that an applicant must: (a) be registered in the General and Sick Children's Divisions of An Bord Altranais with at least five years' post-registration experience; (b) have two years' experience in specialist practice; and (c) have a commitment to undergo further study in specialist practice. The respondent acknowledged that the complainant was an RGN and RSCN with 28.9 years' post-registration experience, 27 of which involved paediatric specialism. She also had post-graduate courses in Neonatal Intensive Case and Neonatal Resuscitation. The successful candidate was an RGN, RSCN and a Registered Midwife, with 17.10 years of post-registration experience, 17 of which involved paediatric specialism. She also had post-graduate courses in Foundation Counselling Skills, First Line Management, Asthma Care, Basic Life Support and Paediatric Advanced Life Support.
3.4 The respondent acknowledged that the complainant had the requisite qualifications and experience, and said that she was marked accordingly. However, it maintained that the interview board concluded that she did not excel in the other four areas which related to the specifics of the new post, that is organisational knowledge, professional knowledge, special aptitudes and special circumstances. The panel agreed that the complainant did not demonstrate a robust and thorough knowledge or vision of the new post, and awarded marks accordingly.
3.5 The respondent accepted that there had been some delay in responding to the complainant's grievance in relation to the Paediatric Link Nurse Specialist competition. However, it denied any imputation that it had prevaricated. It said the issue arose at the busiest and most urgent time of its planning and financial cycle, and resources were not available until December 2002 to deal with the matters raised by the complainant. By this stage, her representative union had confirmed it had lodged a complaint with the Equality Tribunal.
3.6 The respondent denied it had victimised the complainant in connection with her application for the CNM II post in the Neonatal Unit. It said the qualifications for this post were that an applicant must: (a) be registered in the General Division of An Bord Altranais; (b) have two years' post-registration experience in specialist practice; and (c) hold a Certificate in Neonatal Intensive Care or equivalent. It said the complainant's application was refused on the basis of post-registration qualification guidelines issued by An Bord Altranais.
3.7 These guidelines provided that An Bord Altanais would formally recognise certain qualifications as long as they met the criteria set down by An Bord, including being of a minimum duration of six months. In the guidelines, An Bord listed several courses which it recognised as being eligible for recognition. The only neonatal courses listed were the Special and Intensive Nursing Care of the Newborn Courses held at the Coombe Women's Hospital, the National Maternity Hospital and the Rotunda Hospital. The guidelines provided that nurses with qualifications other than those listed could apply to have them considered for recording.
3.8 The respondent said that the Personnel Department excluded the complainant's application in accordance with the guidelines. It said she was asked to provide course content details as the documents in its possession did not record these. The respondent said that following representations by the INO, and upon receipt of the course content details, it considered the matter further. The Personnel Services Development Officer, in consultation with the Director of Nursing, made the decision to include the complainant's application on the grounds that some flexibility should be used in the case of qualifications acquired prior to the availability of more recent nursing-related training programmes.
3.9 The respondent noted the complainant's reference to a discrepancy in the marks awarded to her in the two competitions. It said the second post was different in its roles, duties and competencies. The respondent asserted it was not possible to compare marks between the two competitions because of these differences. Each competition placed higher and more specific marks on certain areas.
3.10 Regarding the complainant's resumption of duty, the respondent acknowledged that it had an obligation, in as far as was reasonably practicable, to explore and source alternative avenues of employment for employees who had been partially or wholly disabled during the course of their employment. It asserted that these posts may differ entirely from the employees' substantive posts, as there may not be similar or appropriate posts currently available. The respondent said that the suggestion of another post outside the complainant's area of competency was not an attempt to trivialise or negate the valuable contribution she had made, but was an attempt to ensure her continued role as an employee.
3.11 In relation to the CNM II post, the respondent said it was not obliged to inform the complainant of forthcoming promotional posts which were widely advertised in national and local papers and on the respondent's internet/intranet site. The respondent accepted that the complainant's application for a management course was turned down. It said this was in accordance with its policy which is if an employee was certified as unfit for duty, this also extends to work-related training. An approval for an employee to undertake work-related training is therefore subject to the employee's recovery and return to work.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against her on the ground of disability contrary to the provisions of the Employment Equality Acts 1998 - 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including disability.
Section 8 provides that
(1)In relation to-
(d)promotion or re-grading...
an employer shall not discriminate against an employee or prospective employee...
4.3 The complainant's original referral form, received by the Equality Tribunal on 20 December 2001, cited her lack of success in the Paediatric Link Nurse Specialist competition as the incident of discriminatory treatment being complained of. The issue of victimisation was not referred to until the receipt of the complainant's first submission in March 2003. As victimisation of its nature would occur after referral of a claim (see definition at 4.x below), and the respondent had adequate notice of the victimisation allegation and an opportunity to respond in its own submission and at the hearing, I am considering both of these matters in this decision.
4.4 It was the complainant's contention that that she was asked two questions in the first interview that she took to be references to her disability, and that she had superior qualifications and experience to the successful candidate. The respondent denied that the complainant's disability was either referred to or had any impact on her failure to be selected. It acknowledged the complainant's qualifications and experience, but argued that those of the successful candidate were also significant, and the successful candidate had performed better at the interview.
4.5 Of the 100 marks available for Qualifications/Experience, 50 marks were awarded for the essential requirements of the RGN/RSCN dual registration for five years and two years of specialist experience. Further marks for desirable requirements were awarded as follows: Diploma 10 marks, Degree 20 marks, Relevant Experience 20 marks. Both the complainant and the successful candidate were awarded 30 further marks. From the interview board notes provided by the respondent, it is apparent that each of them was awarded 10 marks for a Diploma and 20 marks for Relevant Experience. It is possible that the Relevant Experience marks could have been awarded pro rata, since the complainant had 27 years' specialist experience and the successful candidate had 17 years' specialist experience. However, the complainant would appear to have received preferential treatment by virtue of the fact that her Neonatal Course was assessed as a Diploma. Taking into accounts all of the elements of the marking scheme, I do not consider that the complainant has demonstrated that the interview board failed to have due regard to her qualifications and experience.
4.6 It seems to me to be worth noting that the complainant claimed discrimination only in relation to the first interview. Her claim in relation to the second interview was victimisation (see below). However, in the first interview, she received 348 marks from a total of 500, which constituted 69.6% of the available marks. In the second interview, she received 238 marks out of a total of 400, which constituted 59.5% of the available marks. This does not appear to support the contention that she was discriminated against in the first interview, but not in the second.
4.7 Regarding the first question that the complainant considered discriminatory, I cannot find that there is either a direct or indirect correlation between possession of a driving licence and having suffered injury in a road traffic accident some three years beforehand. Possession of a licence and access to a car were essential requirements of the post, and the complainant's CV does not mention the matter. If the accident had been caused by the complainant's driving, leading to the loss of her licence, there may have been some indirect allusion to her entitlement to drive, as opposed to her disability. However, there was no evidence of this.
4.8 The second question related to the updating of the complainant's CV. I note that the CV listed, under Interests and Hobbies, "Taking IT Course at present". It is the respondent's contention that the question related to ongoing professional education. The complainant's CV under Education and Qualifications listed the Neonatal Course in 1980 as her latest formal qualification. Under the heading Conference and Courses, the CV listed some 11 courses of one to three days' duration that she had attended during the years 1984 to 1999. No further professional training or qualifications were listed. Since a commitment to undergo further study was a prerequisite for the post, I find it reasonable that an interview board would ask a question designed to elicit a candidate's attitude to this requirement.
4.9 Regarding victimisation, the Act provides at section 74 (2)
For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—
(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).
4.10 It is the complainant's contention that the rejection of her application for the CNM II post constituted such victimisation, in that she claims it was a consequence of her lodging a claim to the Equality Tribunal. It will be noted (see 3.7 above) that possession of a Certificate in Neonatal Intensive Care was an essential requirement for applicants for the post. An Bord Altranais set down the guidelines for recognition of post-registration qualifications. The complainant's course was not listed in the guidelines, and was therefore apparently unrecognised. At the hearing of the claim, the complainant asserted that her course had been recognised by An Bord, and she subsequently submitted a copy of a letter from An Bord.
4.11 This letter, dated 17 July 2002 and in response to a letter from the complainant dated 24 June, says "I can confirm that the Neonatal Paediatric course to which you refer…if presented to An Bord Altranais at the time it was completed, would have equivalence to a Category 2 approved course in this jurisdiction." I note that this letter is dated two days after the union was notified that the complainant was being invited to interview. It is clear from the letter that the complainant had not previously applied to An Bord Altranais for recognition of her course. It is also clear from the evidence of both parties that the respondent never knew of the existence of this letter prior to the hearing. I am satisfied therefore that the decision to accept the complainant's course was based on the exercise of discretion in her favour, as argued by the respondent, and that the initial rejection of the course was as a result of the application of the guidelines. I am satisfied that the respondent did not victimise the complainant as alleged.
4.12 The complainant referred to the issue of her return to work, asserting that the respondent had been "less than fair" to her. Several items of correspondence between the parties were provided to me. It should be pointed out that no complaint in this regard was made at the time of the referral of the complaint. The complaint's initial submission, dated 6 March 2003, stated that the complainant had held several meetings with the Director of Nursing to discuss the matter. However, subsequent correspondence from the union in late 2004-early 2005, sought to minimise any efforts made by the respondent to facilitate the comlainant's return to work.
4.13 The respondent, for its part, claimed it had made several efforts to facilitate this return. It cited several offers, both formal and informal, of suitable appointments. It also suggested that the complainant's unavailability for certain appointments with the Occupational Health Unit had delayed efforts to resolve the problem.
4.14 I am not satisfied that the complainant has, at this point in time, established as a fact that the respondent had not facilitated her return to duty. The first reference to her return to work was in a letter of April 2002 (four months after the referral of her claim) from the Occupational Health Unit to the Director of Nursing, which noted that the complainant "recognises that she cannot work in Paeds with the 'hands on' commitment." There has been much correspondence between the parties, but the majority of it has been less concerned with the substantive issue than it has with apparent industrial relations negotiations.
5.1 Based on the foregoing, I find that
(i) the North Western Health Board did not discriminate against the complainant contrary to the provisions of the Employment Equality Acts 1998 - 2004;
(ii) the respondent did not victimise the complainant contrary to the provisions of the same Acts.
7 October 2005