ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002045
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 18/10/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Submission and Presentation:
Extensive documentation and oral evidence was provided. In summary the main points of the Complainant’s case were
Firstly Discrimination on the Grounds of: Disability, Access to a job, failure to provide “reasonable accommodation” for a disability and discrimination in Conditions of Employment.
In specific detail the Complainant is employed as a Staff Nurse with a major Health Respondent in South Dublin. In September 2013 she was involved in a very serious RTA – Road Traffic Accident. This has resulted in her having a Disability.
In the case in hand the Complainant had sought employment initially as a Staff Nurse and latterly as a Community Nurse with the Respondent Mental Health Service (outside Dublin). It is her case that the custom and practice of the Respondent that Community Nurse positions must come initially from the Hospital Ward (staff nurse) setting within their region is unnecessary and discriminatory. As the Complainant is medically unable, arising from her Disability, to accept a Ward (staff nurse) position but able for a Community role the custom and practice used in recruitment by the Respondent is discriminatory against her.
Summary of Respondent’s Submission and Presentation
The Respondent service made the following points
The Complaint is not employed by them and as a result they have no employer /employee responsibilities toward her
The only contacts they initially had with the Complainant were via the National Recruitment Service (NRS) of the HSE. In all their dealings with her they have been guided by the Occupational Health Clearance requirement of the NRS.
In December 2015 the Respondent had contacted the Complainant, at the behest of the NRS, to agree a starting date for a staff nurse position. In the course of the conversation the Complainant had advised the Director of Nursing that she was only able to work in a Community role. The Director of Nursing then advised the NRS that the Respondent had no vacancies at the requested Community level. The Staff nurse job offer from the NRS was then withdrawn. A current Community vacancy is under consideration and at the date of the hearing an Occupational Health report is being sought by the Respondent as regards the Complainant’s Occupational medical suitability
The responsibilities for the Complainant regarding any Disability issues regarding her return to work, reasonable accommodation etc. rests with her current employers the Dublin area services.
In oral evidence the Respondent recruitment process for a Community nursing post was explained – on an approved and sanctioned Community nurse vacancy arising the post is brought to the attention of all qualified nursing staff in the Respondent region. If more applicants are received than posts are available a competitive recruitment competition is held. Once the internal to the Respondent Region process is completed and the post is still not filled the post is passed to the NRS for a national competition or as is the case here to draw off an existing panel created by a previous national level competition.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Issues for Decision:
Taking as an accepted fact that the Complainant has a qualifying disability (not disputed by the Parties) the key questions are
Firstly: is the Recruitment Practice of the Respondent of first seeking “Internal Candidates” before going nationally to the NRS discriminatory either directly or indirectly under the terms of the Employment Equality Act?
Secondly: Does the Recruitment policy constitute a failure to provide “Reasonable Accommodation” to an applicant, in this case the Complainant?
Thirdly: Is there the possibility of Discrimination in gaining entry to the Respondent Region i.e. a Staff Nurse position that would allow the Complainant become eligible for a Community Nurse position.
Fourthly: Is the requirement that Community Nurse applicants have ideally Ward /Hospital experience within the Respondent Region discriminatory either directly or indirectly?
Fifthly: What is the role of the NRS in this process?
Legislation involved and requirements of legislation:
Employment Equality Act, 1998 – the onus rests on the Complainant to establish a prima facie case before the question of a rebuttal passes to the Respondent.
In the order above
The “Internal recruitment” practice
A Community nurse positon, it was accepted by all parties, is an attractive career outlet for hospital based nurses. The practice of the Respondent in having in effect “Geographically confined competitions” was understandable from a local staff morale and industrial relations point of view.
It was clear that the only limiting actor was Geographical & Organisational/membership of the Respondent Staff.
There was absolutely no evidence that any discriminatory practices other than the Geographic applied. Internal applicants with a Disability could openly and equally apply for all positions. In oral evidence the Respondent pointed to a number of existing staff with disabilities.
In the case in hand the Complainant , a non Respondent staff member, has a very low probability of ever securing Community Nurse position in the Respondent region as the available vacancies will almost inevitably be filled locally before the NRS and the Recruitment Panel becomes involved. This situation would apply to persons with or without a Disability.
The disability of the Complainant was not a factor in the Community Nurse position – she was simply not employed in the Respondent region.
In addition the “Reasonably Practicable” argument deserves consideration in support of the Geographical confinement. For every non senior Managerial vacancy in a local area to be open nationally would be simply impractical for service delivery or operational efficiency.
In this context and following the grounds set out in the Employment Equality Act I could not see a prima facie case of Discrimination here specifically in relation to the geographically / internal to Respondent confined Recruitment competitions for Community Nurse positions.
Discrimination at the entry Point to the Respondent. / “Reasonable Accommodation” in recruitment
A prima facie case of discrimination could arise at the Staff Nurse entry point into the Respondent, in this case the Ward /Hospital Staff nurse position vacancies.
The Complainant is highly placed on the NRS panel. To be placed on this panel it is a sine qua non that one is suitable and qualified. If one should be unfortunate enough to experience a RTA, post being placed on the panel and become physically disabled, it does not invalidate your position on the Recruitment Panel.
In the case in hand the Complainant was not deemed suitable, on Occupational Health grounds for a Staff Nurse position in August 2014. Likewise a vacancy for Staff Nurse in December 2015 was subject to an offer/withdrawal situation.
The findings in the Nano Nagle School v Marie Daly ( IEHC 785) case need to be carefully reflected upon. This case effectively sets out the current legal position in relation to what is required in a “Reasonable Accommodation” context. Section 16 of the Employment Equality Acts require an employer or in this case a prospective employer “do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment of faculties”
There did not appear to be any evidence that the question of Reasonable Accommodation or any of the requirements as set out in the landmark Nano Nagle case ( IEHC 785)cited above were entered into in these cases.
This was clearly discriminatory against the Complainant and establishes a prima facie case as regards the previous two employment offers/withdrawals.
However in significant rebuttal defence for the Respondent, the Director of Nursing was at the date of the hearing actively trying to explore the possibility of the Complainant filling a Community post in a Community Residency. E mail and correspondence evidence was exhibited. The post in question was not being offered widely and he was confining it for the moment to the Complainant. This clearly represents a serious effort to provide “Reasonable Accommodation”.
At the date of the hearing he was waiting for Occupational Health guidance before proceeding. In his oral evidence to the hearing it was clear to me that he was doing all in his power to facilitate the Complainant. In addition he confirmed that he was anxious to avoid the offer/withdrawal syndrome as had happen before. I found his actions admirable in the circumstances of the current possible vacancy.
Accordingly taking all the evidence both written and oral I find that there is a prima facie case of discrimination on the two previous Staff Nurse vacancies (September 2014/December 2015) on the grounds of disability/failure to explore /provide reasonable accommodation at the point of entry.
As regards the past incidents of Offer/Withdrawal an element of compensation for distress is warranted and I award a lump sum of € 3,000 in redress
However, as an additional safeguard to the Complainant, I direct that all steps be taken to ensure that all avenues towards “Reasonable Accommodation” are fully explored in consultation with the Complainant before any possible job offer is made and then withdrawn in this Community residency position currently under consideration.
Ward Hospital Experience in Respondent Services as an ideal pre condition.
The Hospital experience required for a particular Community position is a prerogative of local management. It is not in itself discriminatory as it applies to all candidates saving that where a precondition is blatantly discriminatory against one section or individual. No such evidence exists in this case.
The position of the Respondent’s allied National Recruitment Service - the NRS
The NRS were not a party to these proceedings and were not represented in any manner.
My comments are made purely in passing.
From the evidence in this case the Respondent NRS creates the Recruitment Panel and drawing off this panel makes and as happened here withdraws the job offers albeit on the advice of the Occupational Health Department.
As stated above once a candidate is on a Panel it is deemed that they are qualified. There could be no suggestion of discriminatory practices in recruitment competitions to the national panels.
What the evidence in this case suggests is a need for the NRS and the relevant internal Respondent Human Resources Departments to agree a process regarding the actual placing of disabled candidates, from the Panel, in positions bearing in mind the landmark Nano Nagel judgement.
I accept that the Complainant ,in this case , became Disabled post going on the Panel, is a complicating factor and decisions may have been made for best Occupational Health reasons the making and them withdrawing of job offers to a disabled candidate gives rise to a very high risk of the actions being seen as discriminatory.
Accordingly I direct that this Adjudication decision be brought to the attention of the Respondent NRS and the above point be considered.
Dated: 9th December 2016