ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008670
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00011640-001 | 30/05/2017 |
Date of Adjudication Hearing: 07/11/2017
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, andfollowing 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.
Summary of Complainant’s Case:
The Complainant submitted that she applied for a job, as a Care Assistant, with the Respondent. She attended for interview on 18 October 2016. According to the Complainant, the Respondent made a number of comments which she found very uncomfortable and inappropriate. One such question related to gaps in the Complainant’s employment record on her CV. The Complaint stated that the Respondent suggested that she had spent most of her time claiming social welfare.
The Complainant stated that the Respondent then asked her for references. In response, the Complainant provided the Respondent with a reference from her landlord and advised that a further reference could be obtained from an employer with whom she was working part-time. This employer was in the same sector as the Respondent.
The Complainant stated that she had recently commenced working in a private capacity, as a Care Assistant, but due to confidentiality considerations, she was not in a position to provide a reference from this source. According to the Complainant, the Respondent stated that she could not give her the job without references.
According to the Complainant, at the end of the interview, the Respondent advised that she would give her casual employment at first. The Complainant stated that she received an email the next day and was told she would be starting on a two-day trial the following day. The Complainant stated that, despite qualifications and experience as a Care Assistant, she was assigned to a cleaning role.
The Complainant stated that, at the end of the second day of her trial, she was given a set of documents to be completed in relation to her employment. One of the documents in question was a very detailed Declaration of Health. According to the Complainant she visited her doctor to have the document completed. The Complainant stated that one of the questions on the Declaration related to mental health issues. As the Complainant had some short-term issues, in the past, the doctor was required to note this on the declaration. However, notwithstanding this, the doctor confirmed that the Complainant was fit to work in the job she was applying for.
However, notwithstanding the doctor’s confirmation that she was fit to carry out the role, the Complainant was concerned about revealing this private and sensitive information with regard to her previous mental health issues to her new employer. Consequently, the Complainant contacted the Respondent and advised that she would not be taking up the position. However, after reflecting on the matter for a day or two, the Complainant contacted the Respondent, explained why she had initially refused the position and advised that she now wished to take it up again.
According to the Complainant, the Respondent agreed to take her back. However, the Complaint stated that the job she got was not that of a Care Assistant but as a cleaner/multitasker. The Complainant stated that she was very disappointed at this development, particularly as the Respondent was still actively seeking applicants for Care Assistant roles. The Complainant further stated that she was very disappointed and unhappy in her role as a cleaner, given that she had qualifications as a Care Assistant.
The Complainant referred to an occasion when she was not rostered for work, but was called in on the basis that a colleague was absent. However, when she arrived at work it transpired that the colleague had subsequently attended for work and she (the Complainant) was no longer required. The Complainant stated that she took this opportunity to raise the matter of her role with the Respondent. The Complainant stated that as a result of these conversations she was assigned to a Care Assistant and provided with three hours training in this role.
When she next attended for work, the Complainant stated that she had a conversation with the Respondent in relation to her role during which she again advised the latter that she wanted to work as a Care Assistant and not as a Multitasker. According to the Complainant, the Respondent stated that she did not consider her suitable for a Care Assistant role, stating that the job is pressurised and fast paced. The Complainant further stated that the Respondent then asked if she would be willing to volunteer some time as Care Assistant, during which she would be observed in the role and then a decision could be made in that regard. When the Complainant informed Respondent that she did not wish to do the work on a voluntary basis, the latter requested her to return to her cleaning role and they would discuss the matter later.
According to the Complainant when she met with the Respondent sometime later that day, the latter refused to give reasons why she would not assign her to work as a Care Assistant. As a result, the Complainant stated that she completed her shift that day but decided to leave the Respondent’s employment permanently.
In addition to the above substantive element of her complaint, the Complainant also referred to a number of issues, primarily pertaining to health and safety and the fact that she wasn’t paid for doing a manual handling training course.
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Summary of Respondent’s Case:
Background: The Respondent stated that they have been in the nursing home business for almost 30 years. The nursing home caters for 90 residents. The nursing home employs 70 staff who are broken down into teams. The Respondent stated that the primary concern and responsibility for the business is the care of their residents.
The Respondent also spoke of how they are subject to ongoing monitoring by the Health Information and Quality Authority (HIQA), who have identified 18 different areas within the running of a nursing home, which are checked/investigated on a regular basis.
Response to the Complaint: In response to the complaint, the Respondent stated that the Complainant applied online for the position. The Respondent stated that gaps were identified in the Complainant’s CV, which were discussed at interview. The Respondent also stated that they expected to be provided with references from the Complainant’s most recent employer, however, there appeared to be some difficulty in this regard and the Complainant displayed a reluctance in providing such references.
The Respondent stated that they would regularly develop “Pathways” for employees to develop their careers within the nursing home. According to the Respondent, the role of Multitasker was discussed with the Complainant and following interview she was called for a two-day trial. The Respondent stated that the feedback from the trial was good but that the Complainant was a little slow.
The Respondent confirmed that at the end of the two-day trial, the Complainant was provided with the Medical Declaration form. The Respondent stated that they were not aware of any issues pertaining to the Complainant’s health. The Respondent stated that the following Monday, they received a phone call from the Complainant stated she was not coming back to work.
However, they received another phone call from the Complainant the following day, in which she stated that she now wished to come back. According to the Respondent’s evidence, they discussed the Medical Declaration. The Respondent stated that there was no reason why the Complainant could not work and, as a result, was employed in the role of a Multitasker on a casual basis.
With regard to the Complainant’s wishes to work as a Care Assistant, the Respondent stated that her experience was in private/one-to-one care situations. Consequently, the Respondent stated that the Complainant needed to be brought into the home/multi-resident environment. The Respondent stated that the Complainant was provided with three hours training as a carer, but was found to be somewhat slow and nervous in this role.
The Respondent explained that the carer role is a fast-paced role and that the Complainant was deemed to be not ready for such a role at that point in time. The Respondent stated that the Complainant’s development in the work scenario needed to be progressed on an incremental basis and they were willing to assess the Complainant as she worked and progressed in this regard. The Respondent provided documentary evidence in this regard.
In summing up on this matter, the Respondent stated that, at the time, they were looking for experienced carers. The Respondent further stated that they made a judgement call based on their experience and on the fact that the Complainant did not have the relevant qualifications (FETAC Level 5) which the required for new Care Assistants.
In further evidence this regard, the Respondent stated that based on the CV and the fact that there was no reference from the Complainant’s current employers, they could have decided not to hire her at that point in time. However, the Respondent stated that they were willing to give her the opportunity to display her skills and hence the two-day trial took place, following which the Complainant was offered the role of Multitasker.
In addition to the responses provided in relation to the substantive element of the Complainant’s complaint, the Respondent also provided responses to the other issues raised.
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Findings and Conclusions:
The Complainant’s complaint is made under Section 77 of the Employment Equality Act 1998. She alleges that she was discriminated on the grounds of her disability with regard to the fact that she did not get the job of Care Assistant. In addition, the Complaint alleges that the Respondent discriminated against her with regard to conditions of employment and also victimised her.
Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”
This means that the Complainant is required 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, will the burden of proof pass to the Respondent to prove the contrary.
The Labour Court elaborated on the interpretation of Section 85(A) in Melbury v Valpeters (EDA/0917) where it is stated that the section: “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.”
Having carefully considered all the evidence presented by the Complainant in her Complaint form and in her oral evidence at the Hearing, I am not satisfied that the Complainant has met the requirements placed on her by Section 85 of the Acts to demonstrate a prima facie case of discrimination.
It is clear from the evidence adduced that the Complainant's complaint originated with, and has at its core, her belief that the reason she was not given a position as a Care Assistant related to her disability, in particular, the fact that she experienced mental health issues in the past.
Based on the evidence presented, it is clear that, at a point in time when the Respondent was unaware of any issue with the Complainant’s health, let alone her mental health issues, a decision was made to offer her a trial with regard to the role of Multitasker. On completion of the trial, the Respondent offered the Complainant a position in that role. It was only at this point in time that the Respondent requested the Complainant to complete the Medical Declaration form.
It was only after the Complainant reversed her original decision to not take up the role, that the Respondent became aware of any mental health issues. The evidence also shows that, even when they became aware of the fact that there may have been mental health issues in the past, the Respondent proceeded with the employment of the Complainant. Consequently, I am fully satisfied that the Respondent had no issue with whatever references to mental health was contained in the Medical Declaration form, as signed by the Complainant’s Doctor.
The issue then turns to whether or not the Respondent’s decision to employ the Complainant, as a Multitasker rather than as a Care Assistant, was in any way influenced by the fact that there were references to mental health issues on the Medical Declaration form.
The Respondent provided a detailed explanation as to why the Complainant was not considered for a Care Assistant position at that point in time. The rationale for the Respondent’s decision in this regard was clearly based on issues of qualification, experience and observation, following both the initial two-day trial and the three hour training session, under the supervision of an experienced carer.
Given the heavily regulated industry in which the Respondent operates and given that the provision of good and appropriate care to residents is of paramount importance, it is clear that the discretion in relation to employment decisions with regard to the suitability of staff for different roles, must remain with the employer, subject, of course, to appropriate recruitment policies, processes and procedures being followed at all times. With regard to this particular complaint, I find, from the evidence presented by the Respondent, in relation to the recruitment decisions taken with regard to the Complainant, that they dealt with the matter in a careful and appropriate manner.
Consequently, based on the above, I am satisfied that the Respondent’s decision not to offer the Complainant role as a Care Assistant, was clearly based on factors other than her mental health. Therefore, I find the Complainant has failed to establish that an act of discrimination has taken place and, as a result, has failed to comply with Section 85 of the Act.
With regard to the other issues raised by the Complainant, I find these to be tangential to the equality complaint. While the Complainant clearly had issues with the manner in which the Respondent was running the business, I found there to be no link between these issues and the substantive complaint of discrimination on the Employment Equality Act. Consequently, I have no jurisdiction to comment on these issues. |
Decision:
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.
I have investigated the above complaint and make the following decision in accordance with Section 79 of the Employment Equality Acts.
I find that the Complainant failed to establish a prima facie case of discrimination by the Respondent on the ground disability and, as a result, has failed to shift the burden of proof to the Respondent.
Consequently, the Complainant's complaint in this regard is not upheld.
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Dated: 15/08/2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Discrimination Burden of Proof
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