ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008073
David Hughes, Irish Nurses & Midwives Organisation
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: 16/01/2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant started her employment with the Respondent on 3rd March 1983. She is employed as the Head of Nursing Integration & Development. She is paid €2,904.10 a fortnight and works 37.5 hours a week. She alleges that she was discriminated against by the Respondent on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts 1998-2015 (the Acts), in relation to promotion in terms of section 8 of those Acts. The Complainant further alleges that she was subjected to indirect discrimination on the grounds of age contrary to section 31 of the Acts. The Complainant claims that she was discriminated against by the Respondent when it ruled her to be ineligible to compete for the post of Director of Nursing Band 1 on the basis that she did not meet the new national educational eligibility criteria for posts at that level.
The Respondent rejects the claims.
Summary of Complainant’s Case:
The Complainant is a highly qualified registered general nurse, registered psychiatric nurse and registered midwife with additional specialist qualifications in emergency department nursing. She has extensive experience at senior nursing management level in a large acute Band 1 hospital setting, including developing nurse education.
The Complainant commenced employment at the Dooradoyle Hospital complex, Limerick in 1983. Within a year she was appointed through Public Local Appointments Competition to the position of Assistant Matron (now Assistant Director of Nursing). Between 1989 and 2014 she acted in the most senior nursing management posts, namely:
• Acting Deputy Matron (total 4 years, 1989-1993);
• Acting Deputy Matron (total 5 months 1995-1996);
• Deputy Director of Nursing (total 7 years, 1996-2003);
• Acting Director of Nursing (Total 5 1/2 years, 2003-2009);
• Deputy Director of Nursing (total 5 years, 2009-2014).
In total, the Complainant had acted in these capacities for over twenty years, five and a half of which were at Director of Nursing level, Band 1, acute hospital setting.
In late 2015 and early 2016, two competitions were held to fill the post of Operational Director of Nursing (Band 1) at UHL, Dooradoyle. The national eligibility criteria required the applicant to be a registered general nurse and to:
(i) Have had experience in Nursing Management. And
(ii) Have had satisfactory general nursing experience. And
(iii) Possess the requisite knowledge and ability for the proper discharge of the duties of the office. And
(iv) Have undertaken training in management appropriate to the post.
The Complainant applied for both posts and met all of the eligibility criteria. Interviews were held but no successful candidate emerged.
In August 2016, the HSE National Director of Human Resources introduced new national eligibility criteria for the appointment to the post of Director of Nursing (Band 1), which criteria required the applicant to be a registered general nurse and to:
(i)Have 10 years post registration nursing experience and 5 years nursing management experience at a minimum of CNM 2 level of which 3 must have been in an acute setting. And
(ii) Possess a post graduate qualification at not less than level 8 (QQI) in health care or management related area. And
(iii) Possess the requisite clinical, leadership, managerial and administrative knowledge and ability for the proper discharge of the office.
In October 2016, the post of Operational Director of Nursing (Band 1) at UHL was again advertised and the Complainant submitted her application form. She believed that she met the eligibility criteria as she possessed a Management Diploma for Health Service Professionals which she was awarded by the Institute of Public Administration (IPA) in 1991.
On receipt of the Complainant’s application form, HSE National Recruitment Service (NRS) requested her to provide a copy of the transcripts confirming that her diploma was at a Level 8, as recognised by QQI. The Complainant was unable to do so: IPA informed her that records are kept for a 10-year period only. She did, however, provide the NRS with a list of the course modules she had undertaken. The NRS queried the Complainant’s qualification with the IPA who confirmed that the course at issue did not sit on the QQI framework and the comparable programme now offered by them is the undergraduate Diploma in Healthcare Management which is accredited by UCD and sits at Level 6 on the QQI framework. By letter dated 16th November, 2016, the NRS notified the Complainant that her application had failed at stage 1, the pre- interview selection process, because she did not possess a post graduate qualification at not less than Level 8 (QQI) in healthcare or management related area. By email dated 23rd November, 2016 the Complainant wrote to NRS appealing their decision as she felt the eligibility criteria had been unfairly applied to her because the Institute from which she received her management qualification was unable to substantiate the level of the post-graduate qualification and in light of the fact that she had over 30 years’ experience working in a large acute hospital at a very senior nurse management level. The NRS replied by email dated 24th November, 2016 stating that she had been treated in a fair and equal manner with all candidates and therefore her appeal could not be upheld.
In addition to the above competition and as a result of the same eligibility criteria, the Complainant was ineligible to apply for the post of Director of Nursing (Band 1) – Directorate - 3 year contract, which was advertised in mid-January 2017.
Prima Facie Case of Indirect Discrimination on the grounds of Age
The Complainant submits that she has been put at a particular disadvantage as a result of the Respondent’s introduction of new national eligibility criteria in respect of appointment to the post of Director of Nursing (Band 1). The requirement to hold a post-graduate qualification at not less than “Level 8 (QQI) in Health Care or Management related area” has disadvantaged the Complainant by denying her the opportunity to apply for and be considered by the Respondent for the two advertised posts at issue and to, ultimately, reach the grade of Director of Nursing (Band 1).
The Complainant argues that the treatment complained of amounts to indirect discrimination on the grounds of age because the impugned provision, albeit a requirement of all candidates, disadvantages a larger number of older than younger candidates as fewer people of her age could comply with the requirement. At the relevant time, the Complainant was aged 59 years and fell within the age group 55-59 and the successful candidate fell within the age groups 30-39.
The Complainant submits that the following statistics, taken from the Central Statistics Office “Table CD902” (Census Year 2011) presents a profile of people aged over 15 educated to a postgraduate diploma or degree level, and are adduced as evidence to show that persons of the same age group as the Complainant were at a particular disadvantage because of the requirement imposed by the Respondent, relative to persons of the same age group as the successful candidate: Total population educated to postgraduate diploma or degree: 224,744
Age group - 30-34 - 45,801 (20.40%)
Age group - 35-39 - 39,356 (17.51%)
Age group - 55-59 - 12,998 (5.78%)
It has been recognised that, in a case of indirect discrimination, statistical evidence may be of relevant and probative value. The Irish and UK Decisions cited below, have considered the value and use of statistics in determining whether an apparently neutral provision, criterion or practice (PCP) is indirect discrimination.
The Complainant contends that national survey statistics are relevant for the purpose of showing particular disadvantage in a claim of indirect discrimination. She submits that the CSO statistics taken from the Census Year 2011 show that fewer people of her age group were educated to a postgraduate diploma or degree level than people in the younger age groups. Therefore, she contends that it may be inferred that fewer persons of the Complainant’s age were able to satisfy the post-graduate Level 8 (QQI) criterion imposed by the Respondent for the post of Director of Nursing (Band 1) in comparison to the persons in the younger age groups. The statistics, therefore, show that the Complainant in relation to her ability to apply for the posts in question was put at a particular disadvantage.
In relation to the question of particular disadvantage, the Complainant submits that the Respondent may attempt to argue that she cannot show disadvantage because she could have obtained the qualification at any time during her working life or, that she would have had time to do so before her retirement at age 65. This argument, however, was advanced by the Respondent in Games and dismissed by the EAT.
The Complainant contends that she has demonstrated facts from which it may be presumed that indirect age discrimination has occurred and that the burden of proof now shifts to the Respondent to show that the impugned provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
The Complainant submits that the Respondent is unable to show that the impugned provision is justified by a legitimate aim. Even if it is deemed to be justified, the Complainant contends that the Respondent is not able to show that the means of achieving that aim are appropriate and necessary.
The Complainant holds a Management Diploma for Health Service Professionals which she was awarded by the IPA in the early 1990’s prior to the introduction of the QQI award system. She has over twenty-five years’ senior nursing management experience at the Dooradoyle Hospital complex, five and a half of which were at Director of Nursing level.
The Complainant submits that she has been disadvantaged by the Respondent’s imposition of the requirement to hold the appropriate Level 8 (QQI) qualification in order to be eligible for appointment to the post of Director of Nursing (Band 1). At 59 years of age, a ceiling of promotion has been put on her, the effect of which is to deny her the opportunity to reach her full potential in her chosen career and the status associated with it, and to adversely affect her earnings in terms of salary and pension benefits.
The Complainant contends that the Respondent could not have weighed its needs, whatever they may be, against the clear discriminatory effects of the requirement on her and other persons in her age category. She claims that if the necessary balancing exercise had been carried out, the aim could possibly have been achieved by recognising relevant qualifications obtained prior to the introduction of the QQI award system and/or relevant experience, or by an exception being made for existing staff.
It is the case that the Respondent has approved temporary derogations to the same eligibility requirement for appointment to posts of Director of Midwifery in circumstances where the Respondent had failed to fill the posts in the first round of competitions. Candidates for the unfilled posts are now required to possess the appropriate Level 8 (QQI) qualification or “upon appointment, agree to undertake a contractual obligation to successfully complete a post graduate qualification at not less than Level 8 (QQI)...within three years of appointment”. Relying on Homer, it is argued that even this requirement could place older persons at a particular disadvantage in circumstances where they did not have time to obtain the qualification before their retirement.
The Complainant suggests that the UK decisions relied upon are of particular relevance as they each considered whether a PCP namely, the requirement to be educated to a particular level, was indirect age discrimination. It is the case that the reasoning and principles are based on the corresponding UK statutory provision which is somewhat differently worded to its Irish equivalent, however, both Statutes transpose Council Directive 2000/78/EC into their national law. Article 2 of the Directive provides:
“(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having …a particular age…at a particular disadvantage compared with other persons unless… That provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary…:”
If it is found that the Complainant has suffered discrimination, the Adjudication Officer is requested to:
(i) make an order specifying that the Respondent remove the offending requirement; and (ii) award the Complainant an appropriate level of compensation for the effects of the act of discrimination.
The Complainant’s representative relies on Homer v Chief Constable of West Yorkshire Police  UKSC 15, Stephen Games v University of Kent UKEAT/0524/13/DA, Inoue v NBK Designs Ltd 12/2002, McFarland v Kincull Ltd t/a Ulster Weavers Giftstore IT 265714
Summary of Respondent’s Case:
The Respondent in general does not dispute the career progression of the Complainant as outlined in her submission. However, the Respondent submits that the Complainant had the opportunity to access various training over the years and like other nursing staff within the HSE has had the opportunity to attain a Masters Level qualification Level 8 if she has so wished or requested. Following a review of the significant investment in the nursing education over the past 15 years which has allowed nursing grades to access training in various levels and expertise including Masters and PhD Level which resulted in senior level nursing post now having a requirement for applicant to ascertain the desired Level 8 qualification. This has been the position now for a number of years. The desired qualification or experience for the course does not discriminate any member of nursing staff from applying for a post. The requirements of the post merely set out the requirements to undertake the post. The Complainant sought to have a qualification obtained in 1991 recognised for consideration. The Complainant would have been required to confirm that this was a Level 8 qualification to be eligible to apply for the position. Given the fact that the NRS did not get such evidence the Complainant was not shortlisted for interview.
UL Hospitals Group and the HSE have provided the opportunity for nursing staff to avail of further education over the past 15 years. This covers both the financial support and time off to attend such a training programme. Access to this education programme would have been available to the Complainant. Given the significant expenditure and access provided to nursing grades to access the training over the years there is no reason why the Complainant could not have attained the Level 8 qualification required for the Director of Nursing position. The HSE or UL Hospitals Group have not discriminated against the Complainant either directly or indirectly in not shortlisting her for the position of Director of Nursing.
Findings and Conclusions:
The Complainant alleges that she was discriminated against by the Respondent on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts 1998-2015 in relation to promotion in terms of section 8 of those Acts. The Complainant further alleges that she was subjected to indirect discrimination on the grounds of age contrary to section 31 of the Acts. The case before me requires me to address whether or not the Complainant was indirectly discriminated against by the Respondent when it ruled her to be ineligible to compete for the post of Director of Nursing Band 1 on the basis that she did not meet the new national educational eligibility criteria for posts at that level. The Complainant submits that she has been put at a particular disadvantage as a result of the Respondent’s introduction of a new national eligibility criteria, namely the requirement to hold a post-graduate qualification at not less than “Level 8 (QQI) in Health Care or Management related area” in respect of appointment to the post of Director of Nursing. The Complainant submits that the requirement has disadvantaged her by denying her the opportunity to apply for and be considered by the Respondent for the two advertised posts at issue and to, ultimately, reach the grade of Director of Nursing (Band 1).
The Respondent contends that there is no evidence to show that the requirement complained of bears significantly more heavily on the Complainant’s age group. The Respondent further contend that the decision to introduce this requirement was appropriate and necessary and can be justified by objective factors unrelated to the complainants age.
I note that there were two posts the Complainant referred to, namely the post of Director of Nursing (Band 1) and the post of Operational Director of Nursing (Band 1). The former was filled in August 2017 by a person in the age group 30-39, the latter (3 year contract) was filled in July 2017 by a person in their 40s.
There are two are two matters for me to address. Firstly, is that a case that the requirement to have Level 8 education can be complied with by a significantly higher proportion of people in younger age groups to that of the Complainant. If the answer to that is in the affirmative, then the requirement is prima facie discriminatory. Moreover, if that’s the case I must consider if the requirement is appropriate and necessary and can be justified by objective factors unrelated to the Complainant’s age.
S.6(1) of the Acts provides that discrimination “shall be taken to occur where—
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person—
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
Section 6(2)(f) defines the discriminatory ground of age as follows – “as between any two persons … that they are of different ages, but subject to Section (3) … “
Indirect discrimination occurs where an apparently neutral provision, criterion or practice (PCP) puts at a particular disadvantage persons of a protected category, in the instant case an age group, compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
“…unlike direct discrimination, indirect discrimination may stem from a measure which, albeit formulated in neutral terms, that is to say, by reference to other criteria not related to the protected characteristic, leads, however, to the result that particularly persons possessing that characteristic are put at a disadvantage (see to this effect, in particular, judgment in Z., C‑363/12, EU:C:2014:159, paragraph 53 and the case-law cited).”
“As is apparent from the case-law recalled in paragraph 94 of the present judgment, in order for a measure to be capable of falling within Article2(2)(b) of Directive 2000/43, it is sufficient that, although using neutral criteria not based on the protected characteristic, it has the effect of placing particularly persons possessing that characteristic at a disadvantage.” (CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, C‑83/14, par. 94 and 96)
Section 85A of the Act sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters (EDA0917): “Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”
The Complainant argues that the treatment complained of amounts to indirect discrimination on the grounds of age because the provision disadvantages a larger number of older than younger candidates as fewer people of her age could comply with the requirement. The Complainant submits that Inoue and McFarland can be relied upon to show that national survey statistics are relevant for the purpose of showing particular disadvantage in a claim of indirect discrimination. I find that the Act provides that “In any proceedings statistics are admissible…”
In support the Complainant presented the Central Statistics Office table showing that there was significantly lower number of people in her age category educated to postgraduate diploma or degree level in comparison to younger age categories.
Age group - 30-34 - 45,801 (20.40%)
Age group - 35-39 - 39,356 (17.51%)
Age group - 55-59 - 12,998 (5.78%)
Therefore, she contends that it may be inferred that fewer persons of the Complainant’s age were able to satisfy the post-graduate Level 8 (QQI) criterion imposed by the Respondent for the post of Director of Nursing (Band 1) in comparison to the persons in the younger age groups. The statistics, therefore, show that the Complainant in relation to her ability to apply for the posts in question was put at a particular disadvantage.
I note that the Respondent questioned the usefulness of these statistics arguing that they relate to the general population and that the nursing community statistics in respect of educational attainment could be of more value. The Respondent obliged to deliver data in relation to the number of nursing staff who have accomplished at least Level 8 QQI education in the recent years and the age breakdown. However, as of the date of this decision no such data was received. The Respondent delivered copy of pages 1 and 3 of 4-page Circular of 3rd September 2014 outlining the details of Sponsorship of Nursing/ Midwifery Education Initiatives and “some statistics in relation to Director of Nursing (Acute) Campaigns which were launched in 2017”. The former (even viewed in its totality as subsequently delivered by the Complainant’s representative) does not, in any way support the Respondent’s argument that the statistics provided by the Complainant do not relate to the nursing environment. Nor does it provide any data in relation to the number and age profile of the staff who undertook the Level 8 programmes. The latter presents limited information in relation to eight candidates in four campaigns. The document does not shed any light on the total number of candidates in each of the campaigns, their age profile and, more importantly on the number and age of those who were rejected due to the newly introduced requirement. I find that the documents are of no value to this investigation. On the other hand, on the basis of the statistics provided by the Complainant I am satisfied that fewer of the Complainant’s age group were educated to a Level 8 qualification in comparison to the younger age groups. Therefore, it may be inferred that impugned requirement would disproportionately impact person in the age group 55-59 years. For the sake of completeness, there is a plethora of case law including Inoue where it was held that it is unnecessary to produce “elaborate statistical evidence to prove matters which are obvious to the members of the Court by drawing on their own knowledge and experience.” In the instant case, it is quite obvious that persons in the age category of the Complainant would be less likely to have completed Level 8 QQI programmes.
The Respondent argues that the Complainant completed what is now equivalent of Level 6 programme in 1991 and has had ample opportunities throughout her career to complete Level 8. The Respondent further argues that in most professional organisation the Complainant would be expected to update her qualifications. I do not, neither did the Complainant, question the opportunities for further education available to the Complainant. However, as pointed out by the UK Employment Appeal Tribunal in Games v University of Kent  IRLR 202 “…the question of whether a Claimant or persons sharing his characteristics is placed at a particular disadvantage by a PCP must be assessed at the time when the PCP is applied. The question is whether, at that time, it places them at a particular disadvantage. If it does, it is not an answer for the person applying the PCP to say that it would not have placed them at a disadvantage if they had behaved differently at some earlier time.” I find that, at the time of the introduction of this particular requirement it placed the Complainant at a particular disadvantage.
Taking the above into consideration I find that the requirement introduced by the Respondent which would require the Complainant to possess a post graduate qualification at not less than Level 8 (QQI) in healthcare or management related area amounts, prima facie, to indirect discrimination. It is therefore, for the Respondent to establish objective justification for the requirement in question.
In order to objectively justifying indirect discrimination, the Respondent must demonstrate that the PCP complained of objectively pursues the aims relied on. Furthermore, the Respondent must show that it is appropriate and necessary to use such a PCP in pursuit of those aims. A PCP is only capable of being objectively justified if it does not go beyond what is appropriate and necessary to achieve specified and evidenced legitimate aims and the disadvantages caused to the impacted group are not disproportionate to the objectives pursued by the Respondent. If there are other appropriate and less restrictive measures that could be employed a PCP is deemed not necessary and not justified. If, however, no other measure as effective as PCP can be identified a proportionality test must be applied. “Furthermore, assuming that no other measure as effective as the practice at issue can be identified, the referring court will also have to determine whether the disadvantages caused by the practice at issue are disproportionate to the aims pursued and whether that practice unduly prejudices the legitimate interests of the persons inhabiting the district concerned.” (CHEZ, par.123)
It is not sufficient that a reasonable employer might think the criterion justified. The needs of the employer must be weighed against the discriminatory effects of the requirement.
The Labour Court addresses the matter in NBK Designs Ltd. v Inoue  14 ELR 98. The Court held that in the cases of indirect discrimination, as per test set out in Bilka-Kaufhaus GmbHv Weber von Hartz (C-170/84) it must be satisfied that the impugned measures:
a) Correspond to a real need on the part of undertaking;
b) Are appropriate with a view to achieving the objective pursued; and
c) Are necessary to that end
I note that the Respondent submits that it’s long -term aim is to improve the level of educational attainment, particularly at managerial level. The Respondent submits that the position of Director of Nursing is a senior nursing role with significant responsibilities in terms of staff management, budgeting and accountability in front of their regulatory body.Therefore, it is not unreasonable to set the requirement at Level 8 qualification. It appears that, in the Respondent’s opinion a degree level of education can demonstrate the ability to manage the job requirements. The Respondent submits that the entry to the nursing profession is by undergraduate degree since 2002 and the first graduates were employed in 2006.I note the Respondent submits that significant investment was made in nursing education in the past 15 years and the average number of postgraduate education programmes supported annually is 1,500.
I accept the Respondent’s assertion that it is not unreasonable for the employers to have a legitimate interest in increasing the education of the workforce, particularly at the managerial level. I do not dispute that this is a legitimate aim. However, the question arises whether the introduction of the requirement to hold a Level 8 qualification in a manner employed by the Respondent was proportionate. As emphasized in Homer to be proportionate a measure must be both an appropriate means of achieving the legitimate aim and reasonably necessary to do so.
It is common case that between 1989 and 2014 the Complainant acted for over twenty years in the most senior nursing management posts, five and a half of which were at Director of Nursing level, Band 1. The Complainant was deemed to be capable and competent to carry out these duties. However, following the introduction of the new PCP the Respondent did not consider that the necessary abilities required for the post could be demonstrated by, for example successful experience in the role or in a similar role. I note that in Conlon v University of Limerick and the Minister for Enterprise and Employment  ELR 155 McCracken J found that the requirements must be essential. I am not satisfied that the requirements of the Respondent’s business make it essential that the Complainant hold Level 8 qualifications. In fact, I find that the Respondent undermines its own position as to the necessity of the requirement by applying a derogation to the eligibility requirement when it deemed it suitable. The evidence before me suggests that, once the new requirement was introduced the Respondent exercised a high level of discretion in terms of the necessity to hold the required qualification. The Respondent has approved temporary derogations to the same eligibility requirement for appointment to posts of Director of Midwifery in circumstances where the Respondent had failed to fill the posts in the first round of competitions. Candidates for the unfilled posts are now required to possess the appropriate Level 8 (QQI) qualification or “upon appointment, agree to undertake a contractual obligation to successfully complete a post graduate qualification at not less than Level 8 (QQI)…..within three years of appointment”.
As Lady Hall pointed out in Homer it has to be asked whether it was reasonably necessary in order to achieve the legitimate aims of the scheme to deny benefits such as additional benefits associated with being at the highest grade e.g. salary and pension to people in the complainant’s position. It was held that the answer to that to some extend depends upon whether there were non-discriminatory alternatives available. I note that the Respondent did not review the impact of the requirement introduced upon the affected group as against the importance of the aim to the Respondent. There was no evidence presented to suggest that other, non-discriminatory alternatives were considered. I find that it was not reasonably necessary to deny promotional opportunities to the staff in the Complainant’s age group.
It would be my view that if an aim of increasing the level of education of the staff was established it would be prudent, taking the number of staff involved and the size of the organisation such as the Respondent to plan any relevant changes in advance. I note the Respondent’s submission that the entry to the nursing profession is by undergraduate degree since 2002 and the first graduates were employed in 2006. That, however shows only that a higher entry requirement applies to those starting a career in nursing, ultimately in a different age group to the Complainant. It also shows that four years passed between the introduction of the entry requirement and the first graduates actually recruited. It supports the view that that the Respondent could have and should have given the staff members a notice of the planned change in requirements in respect of the posts of Director of Nursing coming.
Having considered the written and oral submissions of the parties, and after applying the legislative provisions and the relevant case law I am not satisfied that the Respondent has discharged the onus of rebutting the presumption of discrimination which the Complainant has established in this case. Accordingly, the Complainant is entitled to succeed.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision: I find the complaint under the Employment Equality Acts 1998-2015 well founded and find that the Complainant was the subject of indirect discrimination on the grounds of age.
I direct the Respondent to pay the Complainant €75,500 which is approximately twelve months’ salary as a compensation for the breach of her rights under the Acts.
I also order that the Respondent reviews its policies in the area of promotions to ensure that its procedures have particular regard to employees protected by the Employment Equality Acts.
Dated: 23rd April 2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Indirect discrimination, age, promotion