ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006549
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: 05/07/2017
Workplace Relations Commission Adjudication Officer: John Tierney
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 79 of the Employment Equality Acts, 1998 - 2015] 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).
The Claimant is claiming discrimination for lack of promotion on the grounds of race
The Claimant is employed as a staff nurse in the Respondent’s hospital since June 2004. She is of Indian nationality. Since taking up this employment she successfully completed a post graduate diploma respiratory nursing and is undertaking a masters in the same.
At every opportunity, she has applied for management and specialist jobs a and on each occasion, she has been unsuccessful. In April 2016, she wrote to the Respondent claiming discrimination on race grounds under the 1998 Act. A meeting took place with the Respondent in July to discuss the matter. It was agreed to investigate the issues involved and respond by August. However, a response was not received until September.
The Respondent did not accept any responsibility and suggested that the problem did not lie with them but rather with the overseas nurses and the Claimant. They recommended that a focus group of overseas staff be established to explore the underlying reasons why the number of nurses in management positions was not proportionate to the overall population. They also suggested that the Claimant could avail of coaching to support her ‘in the process of preparing and participating in interviews’. The Claimant union wrote to the Respondent seeking further information on behalf of the Claimant but these remain unanswered.
The Claimant’s union set out in detail the jobs that she had applied for and the history of the interviews. They concluded the following issue are involved;
The Claimant has more overall experience, specialised experience and qualifications than the successful candidates, who are all Irish, with one exception.
She was not advised by managers if upcoming suitable promotions
Many posts were advertised externally only
Not informed of posts when on maternity leave
Different rules/practises for different completions
No rational/explanations regarding the awarding of marks at interview under various categories.
No individual marking sheets.
Competency sheets missing or no marks allocated.
Huge difference in marking of same competencies in different competitions.
Interview questions not provided when requested.
Interview boards consisting of internal staff only (against policy), with the same managers appearing on the boards of numerous competitions that she competed in.
Experience as a manager for almost two years in India not considered.
The Respondent completely rejected the allegation of discrimination. It submitted that they conducted the June 2016 promotion competition, and all earlier competitions involving the Claimant, in line with its Recruitment Guidelines. The denied that there was any continuum of discrimination or that the earlier promotion competitions should be considered by the Hearing.
The Claimant met with the Respondent after the competition of June 2016. She put forward complaint in relation to various selection process and competitions that she had participated in since 2007. The Respondent undertook to review these complaints and revert to the Claimant.
The Respondent submitted the details and the history of each interview the Claimant participated in detail, since 2007. They also responded in this with the issues the Claimant had raised at the meeting.
It was stated that the Equality Tribunal, when dealing with cases of this type, has given weight to the fact that the same employees were involved in each instance. These acts must also be related and not stand alone events as each of these promotion competition were. In the present cases, there are a number of earlier acts complained of where, initially, the Claimant did not assert any racially discriminatory motive to her non-selection at all. In almost all cases complained of, different individuals were involved in the panels charged with selecting the successful candidate.
The competitions run were for different posts at different times, based on different criteria. It is simply not possible to compare one competition to another or to say they are all separate instances of the same disposition to discriminate. To do so would be to conceive of a conspiracy on so grand a scale to be simply unbelievable.
The Claimant has alleged different treatment on the basis of race in the June 2016 promotion competition. This is despite the fact that on two instances members of the panels interviewing her for different positions congratulated her on her performance emphasised that she would make a good manager, but also indicated that she had not been successful on that occasion.
In the case of the 2016 competition, the successful candidate, while having fewer years overall service that the Claimant, does not – upon review of her CV- to be significantly less qualified than the Claimant based on her CV.
The Respondent stated that there is no pattern of bias indicated in their hospital. Although, the percentage of non-Irish nurse managers is below the percentage of non-Irish nurses on an overall basis, that percentage is in line with those in other large teaching hospitals in the Dublin area.
The Hearing requested further details of the case of Beasley v Nationals Grid (2008) in the UK Court of Appeal, which was submitted by the Respondent. The Claimant’s union also submitted observations on this case.
I have considered the arguments made by both parties. In regard to the matter of time limits and the Beasley case; I do not accept that there is a similarity between it and this case. The last alleged act of discrimination relates to an interview which took place on 24 June 2016. Under Section 77(5) of the Employment Equality Act the Claimant had until 23 December 2016 to refer the claim.
The Claimant has competed in several promotion competitions since she commenced employment with the Respondent. She is now claiming that the reason she not unsuccessful in these, is discrimination on the grounds of race. At the heart of her case is the June 2016 competition. Section 85 of the Act sets out the burden of proof which applies. It requires the Claimant to set out facts which can be relied upon to prove discriminate occurred. The competitions were run for different posts at different times and different criteria. It is not possible to compare one competition to another.
From the evidence presented to the Hearing on behalf the Claimant it is not possible to conclude that she was discriminated against on the grounds of race. I do not find the claim well founded and it fails.
Workplace Relations Commission Adjudication Officer: John Tierney