Ms. Mey (complainant) Represented by the INO vs St. James Hospital (respondent) Represented by A & L Goodbody Solicitors:
Equality Officer Decision DEC-E2007-016 (Coyle G.) 29th March, 2007
Employment Equality Acts, 1998-2004 Sections 6 and 8 - Employment - Discriminatory Treatment - Promotion - Race
The complainant is from South Africa and is non-white. She commenced work in the respondent organisation in February, 2001 and was assigned to the Rheumatology Department in May, 2001. In September, 2004 the position of Rheumatology Clinical Nurse Specialist was advertised and the job title was subsequently changed to Rheumatology Clinical Nurse Manager II. The complainant was one of two applicants interviewed for the position. The other applicant who was Irish was successful in her application. The complainant argues that she was better qualified and had more experience than the successful candidate. It is her contention that she was discriminated against on the grounds of her race. The respondent denies the allegations.
Conclusions and Decision:
The Equality Officer found that the respondent had failed to implement fair, open and transparent procedures in the interview process for the position of Rheumatology Clinical Nurse Manager II position. The Equality Officer noted that the respondent had found that the complainant was both better qualified and had more experience than the successful candidate. The Equality Officer held that in these circumstances the respondent has failed to adequately discharge the burden of proof in this case. The Equality Officer awarded the complainant €20,000 in compensation for the discriminatory treatment and €5,000 in respect of loss of earnings in not been appointed to the promotion position. The Equality Officer also ordered the respondent to introduce fair and transparent selection procedures and she ordered the respondent to notify candidates of the results of interviews in writing as opposed to by telephone.
Equality Officer Recommendation:
EE 11/2000 - Mr. Ronnie Francis v St. Luke's and St. Anne's Hospital
Equality Officer Decisions:
DEC-E2001-019 - Kennedy v Thurles Golf Club
DEC-E2006-011 - Mijegu v Headway
Labour Court Determinations:
DEE011 - Southern Health Board v Teresa Mitchell
DEE003 - Rotunda Hospital and the Mater Hospital v Gleeson
1.1 The dispute concerns a claim by the INO, on behalf of Ms. Mey, that she has been discriminated against by St. James Hospital on the grounds of race within the meaning of Section 6(2) of the Employment Equality Acts, 1998-2004 and in contravention of Section 8 of those Acts when she was not successful in a promotion competition.
2.1 The complainant is from South Africa and is non-white. She commenced work in the respondent organisation in February, 2001 and was assigned to the Rheumatology Department in May, 2001. In September, 2004 the position of Rheumatology Clinical Nurse Specialist was advertised and the job title was subsequently changed to Rheumatology Clinical Nurse Manager II. The complainant was one of two applicants interviewed for the position. The other applicant (who is Irish) was successful in her application. The complainant argues that she was better qualified and had more experience than the successful candidate. It is her contention the she was discriminated against on the grounds of her race. The respondent denies the allegations.
2.2 Consequently the complainant referred her complaint of discriminatory treatment to the Director of Equality Investigations on 13th April, 2005 under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 17th November, 2006 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 9th March, 2007. Additional information was received from the complainant's representative on 23rd March, 2007 and a letter was received from the respondent's representative on 27th March, 2007 stating that handwritten notes taken at the time of interview and immediately after the post-interview meeting and which had been sought at the hearing are not now available.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant is from South Africa and is non-white. She states that she is a registered nurse, a registered midwife, qualified Public Health nurse and has successfully completed a higher diploma in Rheumatology. According to the complainant she has a total of 32 years nursing experience. The complainant commenced working in the respondent organisation in February, 2001 following a recruitment fare in Cape Town, South Africa. She was employed in the Rheumatology Department in May, 2001; was responsible for a nurse led Rheumatology Clinic since that date and also worked in the Rheumatology Out-Patients Department. The complainant was responsible for educating, advising and counselling patients and their relatives; she was responsible for monitoring conditions; monitoring medication effectiveness and arranging referrals to medical Doctors if she deemed this necessary. In 2002 a total of 3,247 patients attended the Rheumatology out-patients and a further 2,334 patients attended the nurse led Rheumatology clinic.
3.2 In September, 2004 the post of 'Clinical Nurse Specialist in Rheumatology' was advertised in the respondent organisation. The qualifications deemed necessary/essential for the post were:
§ Registration in the general division of An Bord Altranais;
§ Have at least 5 years post-registration experience of which 2 years must be in Rheumatology nursing or closely related area;
§ Hold a higher diploma in Rheumatology Nursing or commit to completing a relevant higher diploma within an agreed timeframe.
The complainant applied for the position and was advised of the interview date. She was then advised that for funding reasons the post was being described as Clinical Nurse Manager II but that the job description would not change. On 15th November, 2004 the complainant attended for interview and presented a 10 minute power point presentation as she had been requested to do. According to the complainant she was called for interview at 15.40 and the interview, including the presentation (10 minutes) was completed by 15.55. Later that evening the complainant was advised by telephone that she was not successful in her application.
3.3 The complainant sought information on the interview process and was advised that there were only two candidates for interview and the other candidate, a staff nurse from a medical ward had been appointed. According to the complainant this staff nurse had less experience than her and that she did not hold the higher diploma qualification in Rheumatology. The complainant objected and challenged the outcome of the interview as she felt that she was more experienced and better qualified for this position than the other candidate. She says that she was advised by a member of the interview panel that there was only a point or two between them. The interview marking sheet showed that there were three categories under which marks were allocated as follows:
Criteria Additional Relevant General
Qualifications Experience Suitability
Markings 10 40 50
Score 6 35 30
The complainant was informed that no marks were awarded for the presentations. She was told that overall the successful candidate had shown a greater ability to manage the area, that she had been acting in a Clinical Nurse Manager I position for some time and that this was an important factor. It was also stated that the successful candidate had given a good presentation and was generally more suitable for the position. The complainant contends that she was better qualified, had more experience and met all the requirements of the post and should, therefore, have been appointed. The complainant resigned her position with the respondent organisation on 31st January, 2006.
3.4 The complainant states that she fulfilled the necessary criteria for the post for which she was interviewed. She had a higher diploma specific to the area of Rheumatology and the successful candidate did not hold this qualification. The job description for the position stated that it was necessary to hold 'a higher diploma in rheumatology nursing or commit to completing a relevant higher diploma within an agreed timeframe. The complainant states that she fulfilled these criteria yet she was not awarded the maximum marks in this category (she was awarded 6 out of 10). It is the complainant's understanding that to date the successful candidate has not undertaken this course. The complainant notes that she had experience of autonomously running a department which the respondent conceded was expanding its patient base. She claims that she has run this clinic efficiently and effectively since May, 2001. According to the complainant the successful candidate worked in a medical ward which was not an area specific to rheumatology patients. The complainant says that she was told, prior to interview, that the job title was being changed from Clinical Nurse Specialist to Clinical Nurse Manager for funding reasons but it remained a clinical specialist post and the complainant notes that the job description did not change only the title changed. However in her post interview the complainant was advised that the other candidate demonstrated a greater ability to manage and she had been in an acting Clinical Nurse Manager I position for a year and a half on a ward. The complainant notes that this was not a requirement of the job description nor was it specified in the necessary qualifications yet significant weight was attached to it. She states that she was successfully running the nurse led clinic but was not given equal weight for this role.
3.5 The complainant notes that the interview panel (all Caucasian) consisted of two medical consultants, two senior nurse managers and a representative of personnel. She states that she was in the interview room for 15 minutes during which time she was asked to present a 10 minute presentation (which she was advised after the interview was not allocated any points). At a post interview discussion with a management representative the complainant was informed that the successful candidate was generally 'more suitable'. She was told that the presentation was discussed in the context of general suitability prior to marks being allocated for that category (i.e. 'General Suitability'). According to the complainant she speaks English well but it is slightly accented and it is her belief that this fact, in addition to her colour and ethnic background, influenced the interview panel in reaching their decision. The complainant sought information in respect of the number of non-white nurses employed in St. James and of this group how many held management posts, but this information was not forthcoming. It is the complainant's belief that, at the time of interview, there were no nurses in this category holding management positions.
3.6 The complainant states that one member of the interview panel took notes but that notes were not made by each member of the interview panel separately. Following the interview a general discussion took place and then a score was allocated following this discussion. It is the complainant's contention that this was subjective criteria. The complainant notes that both the Equality Tribunal and the Labour Court have criticised employers for lack of notes, the failure to agree criteria prior to interview, the absence of a formal marking system and the lack of any transparency in relation to selection procedures (2). It is the complainant's contention that she has shown that a prima facie case of discrimination exists given that she has established that she is covered by a discriminatory ground and that she has been subjected to specific treatment which is less favourable than the way someone who is not covered by the relevant ground has been treated. The complainant submits that the facts show that a very subjective selection process operated which was not fair, objective and free from bias and selection would appear to have been made primarily on the basis of performance at interview. She notes that the Equality Officer in the case of Kennedy v Thurles Golf Club (3) held that:
"In a situation where a successful candidate is selected on the basis of his/her performance at an interview the questions which must be considered by an equality officer are whether the interview was conducted in a non-discriminatory manner, whether there are significant reasons why the claimant should have been selected and whether the Board had credible and non-discriminatory reasons for not selecting the claimant".
It is the complainant's belief that she has shown that the interview was conducted in a discriminatory manner, that there were significant reasons why the complainant should have been selected and that the interview board did not have credible and non-discriminatory reasons for not selecting her.
3.7 Should the complainant succeed in her claim she asks the Equality Officer to take into consideration the following facts:
§ she had to resign her post in the respondent organisation as a result of the treatment to which she was subjected;
§ the loss of income she suffered as a result of the discriminatory treatment. Had she been appointed to the promotion post she would have earned a salary of €45,386 per annum rising to €46,166 per annum in 2006 as compared with her staff nurse salary of €40,861;
§ the emotional distress and anxiety she has suffered as a result of her former employer's discriminatory treatment which eventually led to her having to cease her employment.
3.8 The complainant seeks a decision by the Equality Officer that the respondent discriminated against her on the grounds of race and that she be compensated for loss of earnings suffered as a result and for the stress and anxiety of this discrimination.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent states that it is an equal opportunities employer and it denies that any discrimination has taken place in the selection of another candidate over the complainant for the position of Rheumatology Clinical Nurse Manager II in November, 2004. It is the respondent's submission that clear, objective and fair criteria were followed in the selection of the successful candidate and that the complainant's race played no part in the respondent's decision making process. The respondent states that the complainant was afforded the same opportunity to apply for the post as all other suitably qualified employees in the respondent organisation. According to the respondent the complainant was provided with the same information in relation to the post as the other candidates who applied for the position and the interview was conducted in the same way for each candidate. The respondent states that in reaching its decision the interview panel based its selection on fair, objective and transparent criteria and no discrimination occurred.
4.2 The respondent states that the position of Rheumatology Clinical Nurse Manager II was advertised in September, 2004 and was filled following interviews on 15th November, 2004. The vacancy which was advertised in September, 2004 was for the position of Clinical Nurse Specialist. The job specification was set out in the advertisement for the position (see Appendix A). In accordance with the respondent's recruitment policy and the guidelines of the Equal Opportunity/Diversity Committee the vacancy was advertised on notice boards throughout the respondent organisation and on the respondent's intranet. Prior to the interviews each candidate was notified of the fact that the grading of the position had changed from that of Clinical Nurse Specialist to that of Clinical Nurse Manager II. The respondent notes that the classification of the role had changed because of a change to the funding structure of the position but the nature of the role had not changed and candidates were so informed. According to the respondent there were three candidates originally for the position but one candidate withdrew before the interview.
4.3 The respondent notes that, at the beginning of the interview, the reclassification of the role was explained to each candidate. The interview panel comprised five people as follows:
Ms. Margaret Codd, Nurse Manager SaMS Directorate
Ms. Dympna St John Cross, Nurse Manager Trauma
Dr. Gaye Cunnane, Consultant Rheumatologist
Dr. Michelle Doran, Consultant Rheumatologist
Ms. Susan Fisher, Recruitment Officer
The interview panel met prior to the commencement of the interviews to agree the format of the interviews, the scoring system which would be used and the qualities that the panel was looking for in the successful candidate. The respondent states that each interview lasted for 35 minutes. According to the respondent the role of Rheumatology CNM II was a new one within the organisation and the successful candidate required good leadership skills and the ability to demonstrate their initiative in addition to good communication and management skills. This new role would require the successful candidate to work at a senior level within a multi-disciplinary team and, therefore, the panel were looking to appoint somebody with strong leadership and excellent communication skills.
4.4 The respondent states that the scoring structure for the interview was agreed (see Appendix B) and a set of questions were agreed in advance of the interviews. The questions were designed to give each candidate an opportunity to demonstrate their understanding of the skills required for the role and to discuss their own experience and skills with reference to those required for the position. The respondent states that the same questions were put to both candidates. The questions were relatively broad in nature to allow each candidate to expand upon their answers and to demonstrate their understanding of the nature of the position and the skills required for the new role. The respondent notes that the candidates were not awarded marks for their presentation specifically but the presentations were used by the panel to assess each candidate's understanding and vision for the role and how it fitted into the service being provided by this new role. The respondent says that each candidate's presentation skills were observed by the interview panel as the successful candidate would be required (as part of their responsibilities) to give lectures to students as well as to present at different conferences.
4.5 The respondent states that the three headings under which candidates were scored were Additional Qualifications, Relevant Experience and General Suitability. Under each criteria the respondent says that the interview panel considered the following:
Additional Qualifications - Any relevant courses, certificates, diplomas, etc. which had been completed by the candidates were awarded a set number of points. The complainant was awarded 4 points for having completed a Higher Diploma in Rheumatology and the further 2 points for having completed some short courses. The successful candidate was awarded 3 points for having completed a Batchelor of Nursing Studies and 2 points for having completed some short courses.
Relevant Experience - Under this section each candidate could achieve a maximum score of 40 points. The complainant was awarded 35 points for her Rheumatology specific experience which had been at the grade of Staff Nurse. The successful candidate was awarded 27 points which reflected her lesser experience in this area. The respondent notes that the successful candidate did have experience in Rheumatology and had worked in the Victor Synge Ward in the respondent organisation where she had looked after the Endocrinology, Dermatology and Rheumatology wards. According to the respondent she had worked in this role for 3½ years as a staff nurse firstly and then for 1½ years at the level of Clinical Nurse Manager I (CNM I) which is only one grade below the role for which the candidates applied. It is the respondent's submission that the complainant's assertion that the successful candidate had no experience in Rheumatology is incorrect.
General Suitability - The interview panel looked at the candidates' overall suitability for the position. The respondent notes that the appointed candidate would require a broad set of skills as set out in Appendix A. At the date of her application the complainant was a staff nurse in the respondent organisation working in the Out Patients Department while the successful candidate was a Clinical Nurse Manager Grade I in the Victor Synge Ward - a medical ward which includes Rheumatology patients. As the role for which the candidates had applied was that of a Clinical Nurse Manager role, the respondent states that managerial experience and leadership skills to date were viewed by the panel as part of the essential criteria. During the course of her interview the successful candidate discussed in particular detail her previous role in the Keith Shaw Ward (a new ward) in the respondent organisation. She was involved in the setting up of a new training plan and also had involvement in audits and evaluations. The respondent says that the successful candidate in her responses to the interview panel gave a detailed explanation as to the kind of challenges she faced working on a new ward and how she met those challenges. She also discussed the initiatives she had taken in this role. According to the respondent the successful candidate had then moved to a position in the Nurse Practice Development Unit where she had gained experience as a clinical placement co-ordinator and she discussed her experience in this role with the interview panel. She then returned to the Victor Synge Ward in the role of acting CNM I where she gained experience in managing a team. It is the respondent's submission that she clearly outlined the experience and skills gained that would transfer to this new post.
The respondent says that during the course of her interview the complainant was asked about her relevant experiences to date but she failed to elaborate on her answers. In particular she did not demonstrate to the interview panel that she had experience in the key areas identified in the job advertisement and in particular she did not clearly demonstrate her managerial experience to date. The respondent notes that while the complainant did refer to her role in helping to supervise 40 nurses, as head nurse in a previous employment, she did not provide specific examples of how this role had developed her managerial skills or how she had overcome any challenges that she had met. In particular the respondent says that the interview panel did not think that the complainant demonstrated as clear an understanding of the nature of the role and the skills she required as the other and ultimately successful candidate. Furthermore she did not link her experience to date to the skills which would be required for the new position.
Therefore the respondent submits that the complainant was awarded 30 marks out of a potential 50 under the heading of general suitability whereas the successful candidate was awarded 40 out of 50 for general suitability due to her managerial experience and her performance at interview on the day where she demonstrated good communication and leadership skills. As the successful candidate received a higher mark she was offered the position, accepted it and is performing excellently.
4.6 The respondent states that the issue of the complainant's race never entered the decision making process and the interview panel absolutely refute that race had any role in the decision not to award the position to the complainant. It is the respondent's contention that the successful candidate performed well at interview whereas the complainant did not elaborate on her answers to the questions asked and did not demonstrate that she had the necessary skills and experience for the role when compared to the successful candidate. While the complainant was qualified for the position the successful candidate demonstrated that she was more qualified and was, therefore, successful in her application.
4.7 It is the respondent's contention that the selection procedure was fair and objective and gave each candidate the same opportunity to apply for the position. Each candidate was asked the same questions during the interviews and given the same opportunity to elaborate on their answers. In a feedback meeting which the complainant requested with Ms. Codd on 24th April, 2005 the complainant went through some of her answers and highlighted what each answer meant and provided more detailed answers than those she had given during her interview. The respondent says that Ms. Codd explained to the complainant that this is the type of information she should have provided at her interview but which had not been forthcoming. According to the respondent the complainant explained that she had expected specific questions to be asked and in response, Ms. Codd explained that the interview questions were deliberately broad so that each candidate would have the scope to demonstrate all their skills and experience relevant to the new post. The respondent states that the complainant informed Ms. Codd that she had not performed an interview for some time and that she had not taken up the opportunity of a mock interview from a nurse manager. It is the respondent's submission that Ms. Codd informed the complainant that, while her answers to the questions had not been wrong, they did not demonstrate to the panel the experience, skills and practices needed to fulfil the job in question.
4.8 The respondent notes that the Equality/Diversity Committee within the respondent organisation monitors the recruitment of staff within the organisation and the Committee carries out regular audits of the processes used. According to the respondent the active recruitment of foreign nurses to the respondent organisation commenced in 2000. This is a significant investment and the respondent's overall objective is to retain the people it recruits and for them to work in the Irish healthcare system permanently. The respondent notes that it does not retain records of the promotion of 'non-white' nurses in its organisation. For the purposes of this case the respondent has compiled a record of the nationality of all nursing applicants (including successful applicants) for promotional positions at the date of the complainant's complaint (see Appendix D). In 2005, out of a total number of promotional positions available for nurses in the respondent organisation, 20 foreign nurses applied for these positions and 5 were successful showing a 25% success rate for foreign candidates in promotion applications. The respondent states that this reflects accurately the overall percentage of foreign nurses in the respondent organisation at the time. According to the respondent the aim of recruitment of foreign nurses is to see them progress to managerial positions. It is the respondent's submission that it recognises that the number of foreign nurses who apply for promotional posts is low when compared with the overall percentage of foreign nurses working within its organisation. The respondent says that for many nurses coming from abroad their intention is to stay only for a limited period of time and during that time maximise their earnings as much as possible and doing so by shift work and overtime. The respondent notes that a promotional role can often lead to a reduction in salary in the short term due to the loss of shift work. As a result many foreign nurses do not apply for promotional positions despite, the respondent says, efforts to encourage all employees to apply for such positions.
4.9 According to the respondent it has undertaken a number of initiatives to encourage foreign nurses to apply for promotional positions and these were all in place at the time of the complainant's interview for the position of CNM II in Rheumatology. The respondent states that all managers encourage all staff, particularly foreign staff, to apply for any suitable promotional posts which become available. As part of the week long induction programme for foreign nurses they meet a South African nurse operating in the role of Clinical Nurse Manager II in order to encourage them to consider promotion where suitable positions become available. The respondent says that this is designed to demonstrate to them that it wants them to progress to promotional positions and to see their future with the organisation. All nurses, including foreign nurses, participate in a Personal Professional Development Programme which includes a twice yearly meeting with their manager to discuss their professional development and any steps they can take to reach promotion and to further their career. The respondent notes that all foreign nurses spend time during their orientation period in the Diagnostic Imaging Department to see first hand an example of foreign nurses operating in a promotional post.
4.10 The respondent notes that the Labour Court in the case of Southern Health Board v Teresa Mitchell (4) set out the evidential burden which a complainant must discharge before it can accept that a prima facie case of discrimination has been established. It is the respondent's contention that the complainant has not discharged the burden of proof in respect of her claim of discrimination on the grounds of race under the Equality legislation. According to the respondent the successful candidate did have the relevant experience for the role and demonstrated clearly to the interview panel that she had the necessary management and leadership skills for the role. The respondent notes that the Equality Officer in the case of Mijegu v Headway (5) confirmed that a complainant's case must fail where no prima facie case has been established and it is the respondent's contention that the complainant's case must fail. Notwithstanding this the respondent submits that even if it is accepted that a prima facie case does exist it has been established that no discrimination on the grounds of race occurred in the non-selection of the complainant for the vacant promotional position.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was discriminated against by the respondent on the grounds of race within the meaning of Sections 6(1) and 6(2)(h) of the Employment Equality Acts, 1998-2004. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
5.2 The facts of this case are that the complainant applied for the position of Rheumatology Clinical Nurse Manager II in the respondent organisation which was advertised in September, 2004 as a position of Rheumatology Clinical Nurse Specialist (the job title was changed because of a change to the funding structure for the position but the details of the job remained the same). She held a higher diploma specific to the area of Rheumatology and had just over 3 years experience in the Rheumatology Department of the respondent organisation. There were two other applicants for the position, one of whom withdrew the application prior to interview. Accordingly two candidates were interviewed for the vacant position and the other applicant (not the complainant) was successful in her application. The complainant is from South Africa and is non-white while the successful applicant was Irish.
5.3 The complainant was better qualified and had more experience in Rheumatology for the position of Rheumatology Clinical Nurse Manager II. In advance of the interview the interview board set out a breakdown of marks to be allocated to the criteria Qualifications. No such breakdown was determined for the other two criteria which together accounted for 90% of the total marks. An agreed mark under each criterion was awarded to each candidate rather than individual marks from each member of the interview board. I am satisfied that the lack of transparency in the interview process along with the complainant's better qualifications and greater experience establishes a prima facie case of discrimination on the grounds of race and the onus shifts to the respondent to prove otherwise.
5.4 The job advertisement for the position of Rheumatology Clinical Nurse Specialist (subsequently changed to Clinical Nurse Manager II) was very detailed (see Appendix A). In terms of qualifications it stated that
§ Candidates be registered Nurses of An Bord Altranais or be entitled to be so registered;
§ Candidates have at least 5 years post-registration experience of which 2 years be in Rheumatology nursing or closely related area;
§ Candidates hold a Higher Diploma in Rheumatology Nursing or commit to completing a relevant Higher Diploma within an agreed specific timeframe.
Both the complainant and the successful candidate were registered Nurses with An Bord Altranais. They both had 5 years post-registration experience and I note that the complainant had in excess of 2 years working in the area of Rheumatology. According to the respondent the successful candidate also had in excess of 2 years working in the area of Rheumatology when she looked after a ward which had patients suffering from Endocrinology, Dermatology and Rheumatology conditions. The respondent says that the successful candidate worked in this area initially as a Staff Nurse and was subsequently appointed a Clinical Nurse Manager I which is one step down from a Clinical Nurse Manager II position. While the experience of both candidates in Rheumatology differed I am satisfied that they both met the requirement of at least 2 years experience in the area. In relation to the requirement to hold a Higher Diploma in Rheumatology or to commit to completing a relevant Higher Diploma within an agreed specific timeframe I note that the complainant did have the prescribed Higher Diploma and the successful candidate did not. In this competition 10 marks were awarded to qualifications and these were broken down as follows:
Certificate 1 point
Diploma 2 points
Degree 3 points
Higher Diploma 4 points
Masters 5 points
If a candidate had a Higher Diploma and a Degree she received the higher points only (i.e. the points for the Higher Diploma) and not the overall points (i.e. not the points for the Degree). On the basis of each candidate's qualifications I note that the complainant was awarded 6 points (i.e. 4 points for Higher Diploma and 2 points for other short courses) and the successful candidate was awarded 5 points (i.e. 3 points for the Degree and 2 points for other short courses) for qualifications. I am satisfied that the marking for qualifications was objectively applied to both candidates.
5.5 The interview board allocated 40 marks to Experience and, according to the respondent, this experience specifically related to Rheumatology experience. The respondent stated that both candidates had Rheumatology experience but that the interview board was satisfied that the complainant had more Rheumatology experience than the successful candidate. It was on this basis that it was decided that the complainant should be awarded more points for experience than the successful candidate hence they were awarded 35 and 27 points respectively. At the hearing of this claim the respondent was unable to clearly outline why the complainant received 35 points and the successful candidate received 27 points. The interview board had not undertaken a breakdown of the 40 marks and the marks awarded to each candidate were based on a subjective view by the interview board as to what marks should be awarded to each candidate based on their levels of experience in Rheumatology. The respondent stated that the interview board was satisfied that the complainant had more experience in the field of Rheumatology than the successful candidate. However in discussing Rheumatology Experience the respondent noted that the successful candidate had in-patient experience which the complainant lacked. As against this I note that the complainant had experience in out-patient and day care which the successful candidate lacked. According to the respondent the Rheumatology aspect of her job took up four ½ days of the complainant's working week. There was no breakdown of the amount of time the successful candidate spent on Rheumatology. There was no indication that the interview board gave any credence to the fact that the complainant had attended a number of conferences on Rheumatology (some at her own expense) and was also a member of the Irish Health Professional Rheumatology Society. In these circumstances I consider that if the interview board had applied objective marking to this criteria (i.e. Experience specifically Rheumatology Experience) then the disparity in the marks awarded to the complainant and the successful candidate would have been greater than 8.
5.6 The interview board allocated a total of 50 points to the criteria of General Suitability. The respondent stated that the interview board did not outline what it meant by General Suitability but under this heading consideration was given to the 10 minute Presentations each candidate was required to make at interview, the candidates' performance at interview and the candidates' demonstrated ability to fulfil the five core concepts attaching to the role. The complainant received 30 points under this heading while the successful candidate received a total of 40 points. Again the allocation of marks under this heading was very subjective. Having said that I note that the respondent did provide a copy of the questions asked of each candidate and their responses to these questions as noted by one member of the interview board who was charged with taking notes. The notes taken by this member of the interview board were typed up subsequent to the interview and the original notes are not now available. It is clear from these notes that both candidates were asked the same questions. However I note that the complainant does not accept that she was asked all these questions at interview. The questions which the complainant said she was asked were not worded exactly the same as the respondent but were clearly in the same vein as the questions put at interview. The complainant was critical of the record of the responses set out in the document submitted by the respondent and said that there was a different approach by the writer to her responses than to those of the successful candidate.
5.7 The respondent has stated that, at the interview, the successful candidate was better able to demonstrate her experiences and skills and how she would apply what she had learnt to the new position. This was not clear to me from the notes submitted. At the hearing of this claim the respondent placed significant emphasis on the fact that the successful candidate was at the Clinical Nurse Manager grade whereas the complainant was a Staff Nurse. It was argued that as a result the successful candidate had greater management experience. I find that the emphasis placed on management experience at the interview was not reflected in the job requirements as set out in the job advertisement (see Appendix A).
5.8 In conclusion I find that the respondent has failed to discharge the burden of proof in this case. I note that the respondent applied three criteria in assessing candidates for the position of Rheumatology Clinical Nurse Manager II in the respondent organisation. The criterion of qualifications was objectively assessed. There was no objective assessment of the other two criteria namely Experience (which was specifically Rheumatology Experience) and General Suitability. It is notable that these two criteria accounted for 90% of all the marks. If Experience had been objectively assessed I find that the disparity of 8 points between the complainant and the successful candidate would have been greater. In terms of General Suitability I note that the complainant was awarded 10 points less than the successful candidate. It is unclear to me how the scores for General Suitability were determined. Overall I find that if the marking had been objective the complainant would have received higher marks to the successful candidate for Experience and could ultimately have been successful in her application. I note that the respondent considered that both candidates were suitable for the post. The failure by the respondent to apply objective criteria has resulted in the respondent's failure to adequately shift the burden in this case.
5.9 There was a conflict between the parties as to the length of time the complainant's interview lasted. The complainant alleges that her interview lasted 15 minutes (10 minutes for the Presentation and 5 minutes for questions and answers) whereas the successful candidate's interview lasted 35 minutes. The respondent denies this. There is no evidence to support either position on this point.
5.10 There was conflict between the parties about the contents of a feedback meeting between the complainant and two of the interview board members the day after the interview. One of the board members submitted her notes of that meeting. These notes were typed up some six months after the meeting but she states that the notes were typed on the basis of handwritten notes she made at the time but which are not now available. According to the respondent the complainant asked what she had done wrong and indicated that she had expected to be asked specific questions (rather than the broad questions that were asked). The respondent notes that the complainant gave no indication that she considered that she was unsuccessful because of her race.
5.11 The complainant has stated that she had to resign her position because she found it difficult to continue working in a situation where she was effectively training the successful candidate in the Rheumatology Outpatient and Day Care Clinics. I note that the complainant did not resign her position until 31st January, 2006 - a full year after the position had been filled. I further note that the complainant is not arguing discriminatory dismissal.
6.1 In view of the foregoing I find that St. James Hospital did discriminate against Ms. Mey on the grounds of race within the meaning of Sections 6(1) and 6(2)(h) of the Employment Equality Acts, 1998-2004 and contrary to the provisions of Section 8 of that Act when they did not appoint her to the position of Rheumatology Clinical Nurse Manager II even though she was better qualified and had more experience than the successful candidate.
6.2 In accordance with Section 82 of the Employment Equality Acts, 1998-2004 I hereby order the following:
(a) that the respondent pays Ms. Mey the sum of €20,000 by way of compensation for breach of her rights to equal treatment under the Employment Equality Acts, 1998-2004 and for the stress suffered as a result of the discriminatory treatment;
(b) that the respondent pays Ms. Mey the sum of €5,000 to compensate her for loss of earnings in not being appointed to the promotion position up to her resignation from the respondent organisation;
(c) that the respondent puts in place fair and transparent selection procedures where all criteria can clearly be objectively assessed and that all interview board members are aware of these procedures and have an understanding of the provisions of the Equality Legislation;
(d) that the respondent notifies candidates of the outcome of selection procedures in writing as opposed to by telephone.
29th March, 2007
Job Application for the position of Rheumatology Nurse Specialist
ST. JAMES'S HOSPITAL
Job Title: Rheumatology Nurse Specialist
Grade: Clinical Nurse Manager II
Area of Assignment: SaMS Directorate
Reporting Relationship: Directorate Nurse Manager
Consultants Rheumatologists, Medical team, Clinical Nurse Managers in Victor Synge Ward and Rheumatology multidisciplinary team and allied staff, Clinical areas throughout St. James's Hospital.
1. Be registered in the general division of the register of Nurses maintained by An Bord Altranais or be entitled to be so registered
2. Have at least 5 years post-registration experience, of which 2 years must be in Rheumatology nursing or closely related area
3. Hold a Higher Diploma in Rheumatology Nursing or commit to completing a relevant Higher Diploma within an agreed specific timeframe
The Clinical Nurse Specialist (CNS) role in Rheumatology will encompass five core concepts of the role as defined by the National Council for the Professional Development of Nursing and Midwifery and meet the criteria as per the Clinical Nurse/midwife Specialist intermediate pathway ( April, 2001).
1. Clinical Practice
2. Patient Advocate
3. Education and Training
4. Audit and Research
Background to the Role
The primary function of the Rheumatology Department at St. James's Hospital is to provide early diagnosis and treatment for patients with rheumatic diseases. These is also a focus on secondary prevention of the complications of chronic inflammation, with the aim of improving the outcome of patients with these conditions. Although Arthritis is the most common and well known disease type in Rheumatology, care encompasses more seriously and potentially life threatening conditions such as vasculitis, systemic lupus erythematosus, connective tissue diseases all of which may cause serious damage to internal organs. In addition heart disease, cancer osteoporosis, renal failure infection amyloidosis may develop in patients with chronic inflammatory diseases.
In 2002 a total of 3,247 patients attended the Rheumatology outpatients and a further 2,334 patients attended the nurse led Rheumatology day centre an increase of 91% over 2001 attendances and the number continues to rise. It is estimated that the CNS will have a caseload of approximately 100 patients and will have responsibility for higher decision-making than the staff nurse.
The CNS in Rheumatology has a pivotal role in the management of Rheumatological conditions. This is achieved by providing patient and carer support and education, and in the provision of education of other relevant healthcare professionals in relation to Rheumatology. The management of Rheumatology demands a broad range of professional skills, including communication, counselling, leadership, teaching, education and research. The CNS in Rheumatology has the expertise and specialist knowledge to incorporate these skills into practice and so develop standards of care that benefit the patient. In so doing, the CNS in Rheumatology will embrace the five core concepts of the clinical nurse specialist role to ensure the provision of high quality holistic service for the patient in need of the service, in order to enhance the health status of the Rheumatology population at local and regional level.
The Post Holder will be required to work as a member of the multidisciplinary team providing care to patients with Rheumatological conditions. Responsibility for excellent communication and the co-ordination of service delivery rests with the CNS Rheumatology. The CNS in Rheumatology will liaise with General Practitioners, Practice Nurses, Public Health Nurses and other members of the Primary care team. The identification of new and existing services to ensure the delivery of a patient focused service will be the responsibility of the post holder.
Clinical focus Direct and Indirect care
§ To provide specialist Knowledge, expertise and care to patients with Rheumatological conditions. This will be at a higher level of decision-making in relation to autonomy in interventions, making changes in patient care as defined by protocols.
§ Patient care workload
§ To assess, plan, deliver and evaluate care to patients and their families, in the outpatient, day care and inpatient setting.
§ Contribute where appropriate in formulating or updating policies and procedures, where comply with agreed best practices.
§ Work with the multidisciplinary clinical team to meet the needs of patients and their families. Evaluate clinical problems in conjunction with Medical team; coordinate investigation, therapy and patient follow up.
§ Demonstrate vision, innovation and flexibility in nursing practice.
§ Ensure patients have access to relevant information enabling understanding of their Rheumatological Disease.
§ Formulate discharge plans, which ensure continuity of patient care by liaising with other professionals in hospital and community. To work in collaboration with community care and primary care services offering specialist advice and develop education programmes.
§ Ensure that regard is taken to the dignity, choices, self-esteem and well-being of patients and their relatives in the specialist area of Rheumatology.
§ In collaboration with patients, take available opportunities to represent views of and negotiate on behalf of individual patients/patient groups at a multidisciplinary level and with other personnel or agencies as appropriate.
§ Play a central role in directing patients to specialist advocacy services as appropriate.
§ Develop systems to give service users and carers an opportunity to have views represented in relation to service development.
Education and Training
§ To provide a high level of professional and clinical leadership and to demonstrate innovative practice in the provision of care in line with the Scope of Professional Practice and service needs.
§ Management and Leadership of the Rheumatology Day Centre establishing nurse led education clinics, to educate patients on medication, disease, health promotion, monitoring of blood for Disease Modifying Anti-Rheumatic Drugs (DMARDS), attention to secondary risk factors for disease. Establishment of nurse led Biologics clinic.
§ Develop and facilitate education and support programmes, for patients and professional staff.
§ Develop a telephone support and education system.
§ Develop education material to ensure information standards are maintained.
§ Assist in training members of the multidisciplinary team in changes in practice in the delivery of care including the provision of ward based teaching.
§ Use relevant educational opportunities to maintain the highest standard of care to Rheumatology patients.
§ Raise awareness regarding the benefits of treatment through health promotion.
§ Organisation and training of incoming staff both medical, nursing and clerical.
Audit and Research
§ Maintain awareness within the speciality of current developments in Rheumatology nursing care.
§ Identify areas of practice for evaluation and evaluate current practice and improves methods of care against current peer reviewed research findings. Disseminate research findings to Nursing colleagues and Nurse Managers.
§ Use research findings to influence care within the speciality.
§ Ensure that accurate documentation and record keeping is maintained.
§ Develop a system for recording clinical activity.
§ To establish, implement and evaluate audit programmes of the service, the quality of patient care and the CNS current practice, in line with local and regional developments, to include monitoring and evaluation of educational and health promotion programmes as relevant.
§ Produce an Annual report for the Hospital.
§ Provide specialist knowledge, expertise and care in liaison with the multidisciplinary team.
§ Actively participate in the education and development of nurses and healthcare professionals in relation to Rheumatology on a hospital and community basis.
§ To accept referrals in line with local and regional guidelines.
§ To establish and standardise clear communication channels for referrals and consultations, inter and intradisciplinary.
§ Undertake appropriate further training to enable you to practice within the specialised field of care.
§ Develop the required skills and knowledge to support the service needs within the scope of professional practice.
§ Take personal responsibility for own professional development and updating.
§ Be accountable for nursing judgements and actions.
§ To promote a safe environment with due regard to Health Safety and Risk management.
The Hospital Board is not responsible for loss or theft of personal belongings.
Fire order must be observed and staff must attend fire lectures as per Hospital guidelines.
All Accidents within the Department must be reported immediately.
In line with the Safety, Health and Welfare at Work Act, 1989 all staff must comply with all safety regulations. The post holder has personal responsibility for Health and Safety in the workplace.
In line with the Tobacco Regulations Act, 1990 smoking within the Hospital building is not permitted.
In the course of your employment you may have access to, or hear information concerning the Medical or personal affairs of patients/or staff, or other health services business. Such records and information are strictly confidential and, unless acting on the instruction of an authorised officer, on no account must information concerning staff, patients or other health service business be divulged or discuss except in the performance of normal duty. In addition records must never be left in such a manner that unauthorised persons can obtain access to them and must be kept in safe custody when no longer required.
Ms. Jean Flynn, A/Directorate Nurse Manager, Telephone: 01-4103386, Bleep: 253, E-mail: firstname.lastname@example.org
To apply for this position, please forward a letter of application, clearly stating job reference number, along with three copies of your C.V. to the:
Recruitment & Selection Division, Human Resources Department, St. James's Hospital, James's Street, Dublin 8
CLOSING DATE FOR RECEIPT OF APPLICATIONS IS FRIDAY, 1ST OCTOBER, 2004
(1) This Summary is provided for convenience only and is not part of the Decision for legal purposes.
(2) Labour Court Determination - Rotunda Hospital and the Mater Hospital v Gleeson - DEE003 and Equality Officer Recommendation - Mr. Ronnie Francis v St. Luke's & St. Anne's Hospital - EE 11/2000
(3) Equality Officer Decision - DEC-E2001-019
(4) Labour Court Determination - DEE 011
(5) Equality Officer Decision - DEC-E2006-011