EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2018-024
Dr Zsolt Fábián
Royal College of Physicians of Ireland
(Represented by Arthur Cox Solicitors)
File reference: EE/2013/460
Date of issue: 5 December 2018
1.1 On the 6th September 2013, the complainant referred a complaint of discrimination on the grounds of race. On 27th September 2016, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to hearing on 20th October 2016. The complainant attended the hearing. The respondent was represented by Arthur Cox Solicitors and three witnesses attended on its behalf.
1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
Summary of the complainant’s case:
2.1 The complainant applied for the respondent’s Basic Speciality Training (“BST”) programme for medical doctors wishing to develop an expertise in paediatrics. He applied in 2010, 2013 and 2014 and this claim relates to the 2013 application. The complainant completed his undergraduate medical qualification in Hungary and graduated in 1998. He was one of the top three students in the class and obtained a final mark of 92%, for which he was awarded a qualification “summa cum laude”. He also won various awards for his work. The complainant completed a PhD in 2006 and was awarded First Class honours. In 2009, the complainant obtained a post-doctoral research post at an Irish university and made enquiries about starting clinical training in Ireland. He was advised to apply for the BST programme. The complainant registered with the Irish Medical Council as the certificate of conformity showed the equivalence of his medical qualification.
2.2 In respect of the 2013 application, the complainant applied for three BST rotations with a speciality in paediatric oncology. He referred to his published case study on a child who had a glioblastoma as well as two international patents with an application for children with cancer. The complainant referred to emails from the respondent of the 25th March 2013 and the 12th April 2013, indicating that he was not successful. The complainant outlined that he would have obtained one of the three posts, had the respondent given full recognition to his undergraduate and postgraduate qualifications. He submitted that the respondent discriminated against him on grounds of race because it awarded fewer marks for qualifications obtained outside of Ireland. Referring to the paediatric SHO rotation 2013 marking scheme, the complainant said that 24 marks were awarded for a 1st class honours degree. His qualification was equivalent to a 1st Class Honours. The complainant outlined that the marking scheme provided that a 1st Class Honours Degree obtained in an oversees medical school may, at the panel’s discretion, attract between 1 and 12 marks. He was awarded 12 marks. He said that there were no transparent procedure how discretionary marks were awarded. He missed out of one rotation by a single mark, so the number of marks allocated to his qualifications affected his success.
2.3 The complainant raised other issues regarding the application process. He was awarded 12 marks for his PhD, even though the range provided in the scheme allowed for 12 to 16 marks. Given that he had been awarded a summa cum laude PhD, it was incorrect that he should be awarded the lowest mark in this category. The complainant outlined that he had received insufficient marks for his publications, stating that by 2013 he had obtained a cumulative impact score of over 20. He had published two international patents regarding the treatment of cancer. He had taught for over 10 years but was only awarded a low score of 4 for extracurricular activities. In respect of the interview of the 13th February 2013, the complainant said that he had never received a transcript of the interview and said that they had discussed general issues. The panel had raised the number of years since he completed clinical education. He had raised the option of doing training in the hospital. In respect of the later feedback, the complainant said that the comment regarding his awareness of the BST was rude. The letter also refers to the length of time since his last clinical post, but this was not a selection criterion.
2.4 The complainant outlined that the Irish Medical Council accepted the certificate of conformity for registration purposes. He submitted that the respondent should do the same for qualification purposes. The respondent had not differentiated between Irish and overseas degrees in the 2014 process. The complainant said that he had participated in the 2014 process but received lower marks. He said that he could not now participate in the scheme as the respondent believed that he was not good enough and he would be at risk of victimisation. In respect of redress, the complainant said that compensation was the only realistic option but that there was a wider need for the respondent to provide for a clear, transparent and impartial interview and selection process for BST and HST posts.
2.5 In reply to the respondent, the complainant said that he had been the best candidate for the three oncology-related rotations he applied for. He did not accept that his choices related to where the rotations were located. He did not accept the objective justification advanced by the respondent, referring to the basic clinical training provided during the BST, for example in prescribing. He further said that overseas graduates were precluded from completing an internship in Ireland, so the BST was their only way to advance in Ireland. The complainant referred to the lack of interview notes. He also said that under the current assessment process, a candidate could gain sufficient marks at interview to obtain a place on a rotation. He said that this was not transparent. In respect of anonymisation, the complainant said that he did not object to the publication of his and the respondent’s identity.
Summary of the respondent’s case:
3.1 The respondent outlined that this was a training case as opposed to one relating to access to employment. The respondent provides access to various specialist training programmes, which are, in turn, linked to SHO roles. The HSE or hospital is the participant’s employer, as opposed to the respondent. It submitted that BST participants are on the coalface and must provide care to sick children and babies from the first day of their engagement. This was not an academic role. The respondent assessed participants according to their ability to do the job and it was not just about qualifications. There were 40 rotations in the scheme, where the participants would complete six months in general paediatric care, six months in new-born care, six months in a speciality and the final six months were flexible. It was submitted that the complainant had restricted his application to three rotations and would have obtained a placement had he widened his choice.
3.2 Addressing the claim of discrimination, the respondent submitted that there was no evidence of discrimination in relation to the marks allocated at interview or for the complainant’s postgraduate qualification, his research output or his extracurricular activities. The respondent outlined that the purpose of the interview was to assess a candidate’s interest and knowledge in the area of speciality. The Dean attended the interviews as an observer and to ensure that candidates were given the same time and asked the same questions. The respondent outlined that there was no evidence of either direct or indirect discrimination, and if the complainant was able to establish indirect discrimination, it was submitted that graduates of non-Irish medical schools did not incur any particular disadvantage, referring to statistical data submitted at the hearing. The respondent further outlined that the differential treatment of non-Irish qualifications was objectively justifiable on the basis that Irish graduates had three years clinical exposure in Irish hospitals as well as a further one-year internship. The respondent was entitled to award greater marks for graduates of Irish medical schools as they had relevant knowledge and experience of Irish hospitals. The objective justification was the regard for clinical experience in an Irish hospital. The BST role was a clinical role where each participant would immediately care for children and babies. In respect of the awarding of a maximum of 24/12 marks depending on the provenance of the medical degree the respondent submitted that it was the prerogative of the respondent to fix such criteria.
3.3 The respondent outlined that the complainant was deemed suitable to participate in the programme but was not awarded marks high enough to be allocated to one of the three rotations he sought. In respect of the mark awarded for research, it was submitted that not all this related to paediatrics and it was not sufficient to look at impact assessment. The complainant was awarded appropriate marks for this research and for his PhD and these awards were nothing to do with his nationality. The respondent outlined that the complainant had been allocated high marks in the assessment of his CV but had performed poorly at the interview.
3.4 The respondent outlined that it regularly reviewed the selection criteria for the BST and had subsequently moved the focus from academic qualification to clinical experience, with 30% of marks now allocated to the former and 70% for the latter. It accepted that it did not now differentiate between degrees obtained in Irish and non-Irish medical schools.
3.5 In closing comments, it was submitted that the complainant had not offered evidence of either direct or indirect discrimination. The complainant had failed to establish any particular disadvantage and if it was found that he had, the respondent was able to provide objective justification for the treatment of qualifications from non-Irish medical schools. The respondent submitted that the report should be anonymised as there was no public interest requiring publication.
Findings and reasoning:
4.1 The complainant is a qualified medical doctor and the holder of a PhD in biological sciences. He achieved first class honours (“summa cum laude”) in both qualifications. He has an established track record in oncology, in particular paediatric oncology, i.e. research into, and the treatment of, childhood cancer. He has patents in the field of oncology. He is a graduate of the University of Pécs and works in medical research in the Irish university sector. These facts are not in dispute. This case relates to the complainant’s 2013 application for the Basic Service Training scheme in paediatric medicine run by the respondent. This scheme provides hospital-based specialist training in Senior House Officer (SHO) posts in paediatrics and other specialities. Following an assessment and interview process, the complainant was awarded 51 marks out of a possible 98. He registered his interest in three of 40 rotations, but this was unsuccessful as there were other applicants with higher marks, one by only one mark.
4.2 This is a case pursuant to the Employment Equality Acts in respect of access to vocational training. Section 12(2) defines vocational training as “any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.” The complainant asserts that he was discriminated against on grounds of race and nationality. The respondent, the provider of vocational training, denies claims of direct or indirect discrimination and asserts objective justification if a prima facie case of indirect discrimination is made out. The respondent also submitted statistical data regarding the number of applications and appointments made to the Faculty of Paediatrics programme in 2013. This indicates that 10% of applicants and 11% of those appointed to paediatrics posts were from non-Irish medical schools (17% of applicants and 25% of appointees across the four BST training bodies came from non-Irish medical schools).
4.3 The complainant must meet the burden of proof provided in section 85A of the Employment Equality Acts. He must establish facts of such significance to raise the presumption of discrimination. The Labour Court held in in Melbury Developments Ltd v Valpeters  E.L.R. 64:
“Section 85A of the Act provides 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. What those facts are will vary from case to case 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.”
4.4 In 2013, the BST recruitment process distinguished between the provenance of an applicant’s medical degree. Graduates of non-Irish medical schools could obtain a maximum score of 12, while those of Irish medical schools could achieve a score of up to 24. The complainant is a graduate of a non-Irish medical school and scored the maximum available to him of 12. It is clear that there is no direct discrimination. A graduate of an Irish medical school, irrespective of their nationality could be given a higher mark, while an Irish national who graduated from medical school in Hungary or elsewhere could not score higher than 12. For completeness, the complainant references age discrimination in correspondence but has not advanced this case. For completeness, I find that the claims relating to the interview process and the assessment of the complainant’s PhD and research are not made out.
4.5 The claim is indirect discrimination, where the complainant asserts that the 2013 marking scheme put non-Irish applicants at a particular disadvantage. The Employment Equality Act defines indirect discrimination as
“(1) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
(b) Where paragraph (a)applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
(1A) In any proceedings statistics are admissible for the purpose of determining whether subsection (1)applies in relation to A or B.”
Section 31 of the Employment Equality Acts applies this definition of indirect discrimination to all grounds, including race and nationality.
4.6 Indirect discrimination requires a claimant demonstrate that an apparently neutral provision places them at a particular disadvantage to others. They must show that the provision has a detrimental effect on them on the ground advanced. They can demonstrate this quantitatively (by way of statistics) or qualitatively, see, for example the comments by the Labour Court in NBK Designs Ltd v Inoue (EED0212) regarding “the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of the Court by drawing on their own knowledge and experience. Whilst there are many cases in which the unequal affect of a provision can be seriously put in issue and the true position can only be established by elaborate statistical evidence, the Court is satisfied that this is not such a case.” In Nathan v Bailey Gibson  ELR 114, the Supreme Court held “In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff’s sex.”
4.7 In Seymour-Smith v Secretary of State for Employment (C-167/97), the CJEU considered indirect discrimination in relation to a two-year service requirement to refer an unfair dismissal claim. The Court held “As regards the establishment of indirect discrimination, the first question is whether a measure such as the rule at issue has a more unfavourable impact on women than on men.
Next, as the United Kingdom Government was right to point out, the best approach to the comparison of statistics is to consider, on the one hand, the respective proportions of men in the workforce able to satisfy the requirement of two years' employment under the disputed rule and of those unable to do so, and, on the other, to compare those proportions as regards women in the workforce. Itis not sufficient to consider the number of persons affected, since that depends on the number of working people in the Member State as a whole as well as the percentages of men and women employed in that State.
As the Court has stated on several occasions, it must be ascertained whether the statistics available indicate that a considerably smaller percentage of women than men is able to satisfy the condition of two years' employment required by the disputed rule. That situation would be evidence of apparent sex discrimination unless the disputed rule were justified by objective factors unrelated to any discrimination based on sex.”
4.8 In Bilka-Kaufhaus GmbH v Weber von Hartz (C170/84), the CJEU held “If, therefore, it should be found that a much lower proportion of women than of men work full time, the exclusion of part-time workers from the occupational pension scheme would be contrary to Article 119 of the Treaty where, taking into account the difficulties encountered by women workers in working full-time, that measure could not be explained by factors which exclude any discrimination on grounds of sex.”
4.9 In a free movement case, the Court of Justice examined indirect discrimination arising from rules pertaining to a territorial condition in O’Flynn v Adjudication Officer (C-237/94) “Accordingly, conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers ... or the great majority of those affected are migrant workers ... where they are indistinctly applicable but can more easily be satisfied by national workers than by migrant workers ... or where there is a risk that they may operate to the particular detriment of migrant workers.” The Court of Justice held in Sotgiu v Deutsche Post (C-152/73) “The rules regarding equality of treatment ... forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by application of other criteria of differential, lead in fact to the same result ... It may therefore be that criteria such as place of origin or residence of a worker may, according to the circumstances, be tantamount, as regards their practical effect, to discrimination on the grounds of nationality, such as is prohibited by the Treaty and the Regulation [1612/68].”
4.10 Applying the legal principles set out above, it is clear that the higher marks potentially available to graduates of Irish medical schools when compared to graduates of non-Irish medical schools is a rule that is likely to bear more significantly on graduates who are not Irish. In assessing particular disadvantage, I note the respondent’s statistical data which demonstrate that the non-Irish graduates appointed to posts was slightly higher than the percentage who applied. Where statistics are available, they must play a significant role in determining whether particular disadvantage has been established. I note that the complainant would have obtained a placement had he widened his interest in rotations. It follows that the complainant did not incur particular disadvantage in respect of accessing the BST training programme as a whole. I am satisfied, however, that he incurred particular disadvantage in respect of the rotations he registered interest in, especially the rotation he missed out on by one mark. It follows that the complainant has established a prima facie case of indirect discrimination in this aspect of the case
4.11 It falls on the respondent to demonstrate that the rule is objectively justified. In NBK Designs Ltd v Inoue, the Labour Court held:
“The wording of Section 22(1)(c) must be interpreted as contemplating the three tiered test for objective justification set out by the ECJ in Bilka – Kaufhaus, This test requires that the Court be satisfied that the impugned measures:-
(a) correspond to a real need on the part of the undertaking,
(b) are appropriate with a view to achieving the objective pursued, and
(c) are necessary to that end.”
4.12 The respondent provided the following objective justification: “It is submitted that applying a marking scheme to BST Programme applicants that allows for a higher award of marks to graduates of Irish medical schools as compared to graduates of overseas medical schools is objectively justified by the legitimate aim of ensuring the health and safety of all patients who are treated by the trainees on the BST programme … the training provided in Irish medical schools is specific to the Irish healthcare system and its rules and practices and while graduates from overseas medical schools may have their training recognised by the Faculty of Paediatrics, this training does not align with Irish health care practices as closely as training in Irish medical schools does. It is submitted that the importance of training in Irish healthcare rules and practices is of considerable value in ensuring patient health and safety in Ireland and so public health and safety in Ireland. It is submitted that applicants from overseas medical schools are permitted to apply to the BST programme in Paediatrics and are awarded substantial marks for their undergraduate achievements. It is accepted that the available marks are less than that for graduates of Irish medical schools however this is an appropriate and necessary measure to achieve the legitimate objective of ensuring patient health and safety.”
4.13 The respondent referred to Nowak v The Law Society of Ireland (DEC-E2010-051), where the Equality Tribunal held that requiring applicants who qualified abroad to have a minimum standard of education, to provide a certified copy of their qualification and to pay an administrative fee were objectively justified. The Tribunal endorses the decision of the Court of Justice of the European Union in Morgenbesser v Coniglio dell-Ordine degli Avvocati di Genova (C-3136/01), a case the respondent also relied on. Morgenbesser is a free movement case relating to the recognition of legal qualifications. It requires Member States to examine the applicant’s knowledge or qualifications already acquired or recognised, give adequate reasons for the non-recognition of a qualification and access to judicial remedy. I note that the complainant was issued with a certificate of conformity in respect of his qualifications.
4.14 In assessing objective justification, I note that the BST is a hospital-based training programme for doctors, which involves a significant amount of clinical exposure. I further note the respondent’s reconfiguration of the assessment process in 2014, which formally placed greater weighting on clinical experience over academic qualification. In respect of the 2013 scheme, it has not been set out what differentiates clinical experience acquired in Ireland from clinical experience acquired elsewhere. The 2013 scheme gave marks for clinical experience per se and the additional marks for qualification were a roundabout way of giving weight to clinical experience acquired in Ireland. The scheme could have placed greater weighting on clinical experience over academic qualification (as it subsequently did). Applying Morgenbesser,the respondent did not examine the complainant’s knowledge and qualifications to see how matched they were to Irish clinical experience. There may, for example, be many similarities between clinical experience acquired in Ireland and Hungary. It follows that the respondent is not entitled to rely on the defence of objective justification as the rule was not an appropriate means to assess qualification or Irish clinical experience. It follows that the complaint succeeds in this aspect of the case.
4.15 The primary factor in assessing redress is the fact that the complainant could have obtained a rotation, had he broadened his range of choice. The claim of indirect discrimination has, however, been made out in respect of the posts he applied for. Taking these factors into account, I award redress of €7,000.
5.1 In accordance with section 79 of the Employment Equality Acts, I conclude the investigation and hold that the complainant has established a prima facie case of indirect discrimination on the nationality ground and the respondent has not shown that the rule was objectively justified. I award redress of €7,000 in compensation. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).
Equality Officer / Adjudication Officer
5 December 2018