Complainant

Respondent

Parties

Jubilina Dagogo-Jack

The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women, Dublin (Rotunda Hospital)

Representatives

Maeve Brehony (Irish Nurses and Midwives Organisation)

Tina Ochelle Deasy (IBEC)

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00061924-001

01/03/2024

The Complainant claims that she was subjected to discrimination by the respondent on the grounds of her race contrary to Section 6(2)(h) of the Employment Equality Acts 1998-2015, and in relation to conditions of employment in terms of section 8(1)(b) of that Acts. The complainant also claims that she has been subjected to harassment under Section 14A of the Acts and victimisation in terms of Section 74 of the Acts.

The Complainant is employed as a mid-wife at the Respondent hospital. The Complainant was born in Nigeria and moved to Ireland with her family when she was 8 years old. Initially living in Limerick City, the Complainant completed her primary and secondary education before attending University College Galway where she completed a degree in Midwifery.

The Complainant commenced employment with the Respondent Hospital on the 1st of April 2019. Since then, she has had an exemplary employment record and has undertaken several maternity related CPD courses. In 2021 the Complainant became an Irish citizen. She is currently on a career break, living in Australia.  

It was submitted that on 23rd July 2023, the Complainant shared an information piece from a Named Doctor regarding the work of the Elephant Collective, on social media. The Collective is a group of people who have been directly impacted by maternal deaths in Ireland and have concerns about the maternity services. The group has highlighted disparities in maternity care experienced by women belonging to ethnic minorities.

The Complainant states that the collective has highlighted that the burden of injury and death during maternity have been disproportionately borne by women from ethnic minorities.  

On the 13th August 2023, the Complainant’s Assistant Director of Midwifery (ADOM), Ms G, called the Complainant to her office and referred to the information piece that had been posted on social media. Ms G stated that there had been complaints from employees of the Respondent hospital about the Complainant sharing information on Black maternal health. It was submitted that the Complainant was not shown any of the complaints nor was it indicated who the complaints were from. At the meeting it was discussed that black women and women from ethnic minorities in the UK and Ireland were 4 times more likely to die during childbirth than other women. The Complainant states that she did follow up after this meeting seeking further information on the alleged complaints but no response was provided.  

The Complainant states that on 5th September 2023, during a routine return to work [post period of ill health absence] meeting, ADOM Ms G, observed the Complainant wearing nail polish [BIAB] which is a breach of hospital policy. The Complainant states that she apologised for the breach and confirmed she would have same removed before her next shift. The Complainant contends that during that meeting, the Complainant sought further information about the alleged complaints regarding her posting on social media; however Ms Gannon was unable to provide any evidence or information on the alleged complaints. The meeting ended.  

The Complainant states that half an hour following the meeting with the ADOM, Ms F, Infection Control Midwife arrived to the ER looking for the Complainant. The Complainant states that Ms F instructed the Complainant to leave work immediately to remove varnish from her nails. This instruction was given in front of at least four other members of staff, and in the earshot/ presence of patients of the hospital. The Complainant states that two of her colleagues present immediately questioned why the Complainant was being asked to leave when there were other members of staff who had their nails in similar condition and were not being instructed to leave immediately. Ms F explained that she herself was acting on instruction from Senior management and the only name she had been given was that of the Complainant.  

In a statement furnished to the HR department at the Respondent hospital under the Dignity at Work policy the Complainant stated “I was shocked and felt quite humiliated to be told this in such an unprofessional manner devoid of any respect or dignity. Thankfully, my colleagues A [my emphasis] and R [my emphasis] questioned this by asking Ms F if I was the only midwife being sent home”. The Complainant contends that Ms F responded that the Complainant was the only midwife being asked to leave as per the Director of Midwifery and Nursing (DOMN) Ms H’s instructions and that she was only following the instructions given.

On the interaction, the Complainant further states “I am an Irish Citizen and have lived in Ireland for 19 years. I have experienced racism, both direct and indirect throughout my life. This I felt was a direct display of racism.” 

The Complainant states that by instructing her in the presence of others to leave the hospital immediately, management singled her out for unfair and humiliating treatment without any objective justification for doing so. The Complainant contends that while Ms F may have been acting on instruction from the DOMN, the effect of the manner in which the Complainant was singled out, violating her dignity and creating a humiliating environment for her, constitutes discriminatory treatment on grounds of race.  

The Complainant highlights Section 14A of the Employment Equality Acts relating to Harassment and Sexual Harassment

Where an employee is:

(1)(a) “… harassed or sexually harassed either at a place where the employee is employed….. or otherwise in the course of his or her employment by a person who is:

(i)   employed at that place or by the same employer,

(ii)  the victim's employer, or

(iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(1)(b) without prejudice to the generality of paragraph (a)—

(i)   such harassment has occurred, and

(ii)  either—

(I)   the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II)  it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment.

Harassment is defined in section 14A(7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(7)

(a) In this section—

(i)             references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii)            references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Burden of Proof

Section 85A(1) of the Acts places an onus on the complainant to establish a prima facie case of treatment contrary to the Acts on the grounds of race as follows:

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”.

The Complainant states that on foot of this incident on 5th September, three other midwives were identified and found to be in breach of the same policy i.e. inappropriate nail covering. This was reported to the DOMN, Ms H. The Complainant contends that thereafter Ms F reported that the instruction from the DOMN had changed. The new instruction was for the identified midwives found to be in breach of policy to arrange to have nail coverings removed during their lunch break. The Complainant states that no other midwife was asked to leave their shift immediately. The Complainant maintains that all midwives remained on shift, without removing nail coverings to their shifts conclusion and there was no follow up by management. The Complainant indicated that at least two of the three other midwives were white Irish.  

Section 6(1) of the Acts provides:

“….Discrimination shall be taken to occur where…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”)

Section 6(2)(H) provides that: “they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”)

Section 8(1) provides that “an employer shall not discriminate against an employee……” in relation to:  

a)             access to employment,

b)             conditions of employment, 

c)              training or experience for or in relation to employment, 

d)             promotion or re-grading, or 

e)             classification of posts,” Section 8(6) provides that:

“without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a)  the same terms of employment (other than remuneration and pension rights),

(b)  the same working conditions, and

(c)  the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

The Complainant states that on 5th September, she raised the issue with her line manager, Clinical Midwife Manager 3 (CMM3) Ms W. The Complainant states that rather than listen to her concerns and display any support or empathy, Ms W accused the Complainant of being aggressive and did not support the Complainant’s concern about the way she had been treated in being asked to leave the hospital immediately in front of colleagues.

The Complainant asserts that she was not aggressive at this meeting and is not an aggressive person and that her line manager in describing her as aggressive was unfairly and without justification stereotyping her. 

The Complainant states that the experience of September 5th coupled with the lack of support from her line manager caused the Complainant considerable distress and a bout of sleeplessness. The Complainant asserts that she was worried about coming to work and about her future career within the hospital to the extent that she considered resigning. The Complainant states that on the week of the 13th of September, she suffered an aneurysm and thereafter was absent from work due to ill health until she was deemed medically fit to return to duty.   

The Complainant states that on 18th October, the INMO representative had arranged to meet the Complainant at the hospital. Such meetings between INMO representatives and members of the hospital are normal and take place frequently. The Complainant confirmed with the INMO that she had cleared leaving the department with her CMM1. The meeting lasted approximately 20 minutes and took place after 6.15 pm. The Complainant contends that shortly thereafter senior management contacted the INMO to complain that the Complainant had not received the appropriate approval to attend this meeting. The Complainant states that prior to the complaint being sent to the INMO no attempt, as far as the Complainant is aware was made to check or verify if this was the case or what the basis of the complaint was. The Complainant maintains that this was another incident in which she was singled out by management without there being any objective justification for doing so.

The Complainant states that in November, a complaint was lodged on her behalf under the Respondent’s Dignity at Work policy with the HR department. The complaint was not screened by the HR department under the relevant procedure until she had left Ireland on a career break.  

The Complainant asserts that in her dignity at work complaint, she specifically referred to her treatment on the grounds of her race. 

The Complainant states that the outcome of the screening undertaken by the employer dated 14 December 2023 was considered by Ms Q, Human Resources Manager. Ms Q considered the complaint as one incident of alleged bullying however no consideration was given to section 2.4 of the policy as it relates to discrimination. The Complainant asserts that accordingly, the employer failed to appropriately investigate or consider the matter or its effects on the Complainant.  The outcome was communicated to INMO in February 2024. 

The Complainant states that in her statement, she had clearly stated that she believed the instruction to go home immediately was a direct display of racism. It is submitted by the Complainant that the failure of the HR department of the Respondent hospital to screen the Complainant’s complaint for an alleged act of racism was a further discriminatory act on the part of the employer.

Conclusion

The Complainant asserts that she has raised facts from which it may be presumed that she was discriminated against on the grounds of race when the respondent singled her out for unfair treatment without justification.

The Respondent states that the Complainant is currently employed by the Respondent. It states that the Complainant commenced her employment on 1st April 2020 and was provided with a Contract of Employment in the capacity of an Enhanced Midwife.

The Respondent states that the Complainant shared information on social media on the 13th August 2023 in relation to maternal deaths experienced by ethnic minorities in Ireland. Ms G, Assistant Director of Midwifery had a discussion with the Complainant and advised her that there had been complaints from employees of the Respondent about the Complainant’s social media post.

The Respondent states that the Complainant returned to work on 5th September 2023 after a period of sick leave. It states that the Complainant was required to report to Ms. G for a return-to-work meeting. At the meeting Ms. G noticed that the Complainant had applied 'gel' on her nails. The Respondent maintains that Ms. G advised that the Complainant needs to report this to Infection Control. Ms F, Infection Control Midwife was notified, and instructed that the Complainant would need to leave work and have the nail gel removed immediately. The Complainant was not happy with the way Ms. F spoke to her. The Complainant was subsequently out sick from the 14th September – 1st October 2023.

The Respondent states that it received two statements from two staff members that witnessed the incidence. This was received by the Respondent on 25th and 26th October 2023, detailing the incidence which occurred on the 5th of September. The Respondent states that the Complainant was out sick again between 26th October - 1st November and the 3rd of December 2023. 

The Respondent states that Mr S, the Industrial Relations Officer for INMO sent a letter on 10th November 2023 to the Respondent. The letter was to request for an investigation to be carried out under the Respondent’s Dignity at Work policy, attached to this were the two witness statements.

The Respondent states that the statement from Ms F, CMM1 dated 5th September provided for the conversation between Ms. F and the Complainant regarding hand hygiene, gel and the requirements for its removal. The statement from the Complainant gave an account of the conversation she had with Ms. G and the subsequent conversation with Ms. F.

The Respondent states that another letter dated 13th November 2023 was received by the Respondent from Mr. S, INMO. The letter had a request to carry out the Dignity at Work investigation interview with the Complainant within a reasonable time or before the 6th of December. This was because the Complainant was due to take a career break from the 6th of December 2023.

The investigation meeting took place on 5th December 2023. The meeting was attended by Ms. G, Ms. W, Clinical Manager Midwife 3 (the Complainant ’s Line Manager), The Complainant was accompanied by Mr. S, INMO.

The Respondent states that the Complainant was unsuccessful at first stage informal and secondary informal stage. Subsequently the Complainant ’s complaint was pre-screened by HR Manager Ms Q. It states that a letter was issued from Ms. Q on 14th December 2023 on the outcome of the pre-screening. The complaint was deemed not to fall under the scope of the policy as it had only identified a one-time incidence. This outcome was recommended by Ms. Q.

The Respondent states that the outcome of the screening was communicated to the Complainant ’s representative on 8th January 2024. The Respondent states that subsequently the Complainant lodged a claim with the WRC.

Preliminary Issue – Cognisable Period

The Respondent states that the Complainant submitted her complaint to the WRC on 1 March 2024. On that basis, the cognisable period relevant to the complaint is between 2 September 2023 and 1 March 2024, as outlined in the Workplace Relations Act, 2015. The Complainant has referred to other alleged incidents which occurred on 23rd July 2023, 13th August 2023, regarding a social media post. These dates are beyond the scope of the cognisable period. The Respondent asserts that the purpose of this hearing is to adjudicate into alleged discriminatory treatment within the cognisable period, in the first instance and cites EDA 179 Dunnes Stores v Breda Mulhollandto substantiate that position, which stated that: -

“It is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint”.

The Court also stated that:

“Only if such acts of discrimination are found to have occurred in that period, can the Court consider whether Acts outside the cognisable period can be considered as part of a continuum of discrimination.”

The Respondent submits that it has been the well-established practice of the Equality Tribunal and the Labour Court to require a Complainant  to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, based on the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated:

“The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

The Respondent asserts that in Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court.  The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the Complainant has failed to discharge this burden of proof and consequently, the claim cannot succeed.

The Respondent states that the Complainant alleges that she was discriminated against by the Hospital on the grounds of race, specifically. Furthermore, the Complainant has alleged victimisation. The Respondent refutes this claim in its entirety as the Complainant was treated no less favourably than any other employee under the grounds cited.  The Respondent states that the Complainant  was treated no less favourably in this regard and has failed to demonstrate how any actions taken by the Respondent are related to her race. 

The Respondent states that the Complainant has alleged that she was victimised by the Respondent for raising a claim of bullying and harassment. The Respondent denies these claims and states that there is no basis for same.

The Respondent states that following the Complainant ’s allegation, the Respondent carried out an investigation under its Dignity at Work policy and did a pre-screening of the outcome. The Respondent recommended that given that the complaint was a one-time incidence it would not be addressed as a bullying incidence and the matter may be addressed through the grievance procedure. The Respondent states that the Complainant had the opportunity to raise a grievance under the Respondent’s disciplinary procedure but chose not to do so. 

•       The Respondent submits that given the Complainant’s length of service, she had significant experience and training on hand hygiene and was fully aware of the policy in place. It states that the Complainant had attended several refresher courses on hand hygiene, the most recent course before the incidence was on the 11th of May 2022. Hand Hygiene training is also part of the Respondent’s induction for all employees. The Respondent submits that its Hand Hygiene policy provides the following:

 Preparing for hand hygiene

Bare the wrists (e.g., short sleeved top or rolled up sleeves)

Remove all wrist jewellery, including wristwatch

Remove all hand jewellery (a single plain band may be worn)

Keep fingernails short (tips less than 0.5cm)

Do not wear false nails or nail enhancements (e.g., gel nails)

Do not wear clear or coloured nail varnish or shellac

Cover cuts and abrasions with a waterproof dressing

The Respondent contends that no unfair treatment has been suffered by the Complainant that could be described as discrimination on grounds of race or victimisation within the meaning of the Act. 

It is the Respondent’s position that the Complainant acknowledged that wearing gel polish is a breach of hospital policy. The Respondent states that a breach of hospital policy would at the first instance be required to be addressed by a line manager.

The Respondent’s disciplinary policy states at Clause 3

Scope of the Procedure 

The examples of conduct, which may lead to disciplinary action under this procedure, include:   

3.1         Persistent poor timekeeping 

3.2         Unsatisfactory attendance record 

3.3         Poor work standards/outputs 

3.4         Breach of health and safety rules/regulations 

3.5         Bullying, harassment or sexual harassment 

3.6         Breach of internet/e-mail policy 

3.7         Refusal to obey reasonable instructions 

Clause 4.1 states,

Every effort will be made by the employee’s immediate manager to address shortcomings in work standards, conduct or attendance through informal counselling without invoking the disciplinary procedure.

The Respondent contends that a slight delay in the investigation process would not constitute a discriminatory act on the grounds of race. It states that the Complainant was out on certified sick leave severally after the incidence on the 5th of September and eventually went away on career break.

The Complainant has alleged that the incident and lack of support from her line manager caused her a considerable amount of distress and ill health. The Respondent states that a meeting was held on December 5th 2023 to address the grievance raised by Ms. W against the Complainant. The Respondent submits that following the incident and sick absences, it referred the Complainant for an occupational health referral to ascertain her medical condition and how best to support her.

The Respondent states that the Complainant has asserted in her complaint form that she was experiencing ongoing discrimination resulting from the Respondent’s alleged actions because of her race. The Respondent refutes this allegation in its entirety. It states that the Complainant is not, nor has she ever been treated in a discriminatory manner by the Respondent. 

The Respondent contends that the issue raised by the Complainant regarding a social media post was separate and addressed in an informal conversation the Respondent had with the Complainant  prior  to the incident on 5th September 2023.

Further, to establish a continuum of discrimination there must be an instance of discrimination within the cognisable period of the claim. The Respondent asserts that there was no such occurrence, as the last date of alleged discrimination was 9th February 2024, and the Complainant has failed to outline any act of alleged discrimination within the cognisable period of the claim. 

The Respondent refers to EDA 179 Dunnes Stores v Breda Mulholland which states as follows: - 

“It is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint”.  

The Court also stated that: 

“Only if such acts of discrimination are found to have occurred in that period, can the Court consider whether Acts outside the cognisable period can be considered as part of a continuum of discrimination.”  

The Respondent asserts that the allegation that the Complainant is experiencing ongoing discrimination is false, and therefore respectfully requests that this claim fails. 

The Respondent, in a supplemental submission stated that, as the Complainant is an Irish national as confirmed in her WRC claim form, it is at a loss to understand the basis of the within claim.

The Respondent further states that it has a zero tolerance policy for any form of discrimination. It states that its current workforce comprises 52 % nationalities and it works hard to promote and enforce diversity, equality and inclusion within the organisation.

The Respondent submits that Ms G (ADON) having noticed the Complainant had gel polish on her nails, informed her that the use of such coverings on her fingernails was against hospital policy and instructed her to have it removed before her next shift. Subsequently Ms G had a conversation with Ms H, Director of Midwifery and it was decided given that it was quiet in the ER at the time, the Complainant could be relieved to have the gel nail covering removed as she would have sufficient cover.

The Respondent further submits that if the alleged discrimination rests with the complaint raised by the Complainant on 5 September 2023 regarding her instructing Infection, Prevention and Control Midwife at the time asking her to remove gel polish from her nails, it is clear that this incident occurred as a breach of hospital policy and not racial discrimination or penalisation as a result of same. The Respondent states that the matter was addressed at the time prior to the Complainant’s sick absence and career break. The Respondent states that while the Complainant was unhappy with the outcome of the investigation conducted, she could have raised a grievance under the Grievance Policy but chose not to do so.      

Conclusion

The Respondent submits that the burden of proof rests with the Complainant to show that discrimination has occurred under the grounds of race. It is the Respondent’s position that the Complainant has failed to provide facts upon which it could be inferred that discrimination has occurred. In this regard, the Respondent contends that the Complainant has failed to establish a prima facie case of discrimination and respectfully requests that the within claim fails.

The Complainant is alleging that she has been discriminated against on grounds of race by the Respondent in relation to her conditions of employment. The Complainant also alleges that she has been subjected to harassment on grounds of race contrary to Section 14 of the Acts. The Complainant further alleges that she was subjected to victimisation by the Respondent.

Section 6(1) of the Employment Equality Acts 1998 (as amended) (‘the 1998 Act’) states:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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”)

Section 6(2) provides that: as between any two persons, the discriminatory grounds are inter alia:

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 8 of the Act states:

Discrimination by employers etc.

(1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Section 14 A (7) of the Employment Equality Act provides:

(a)(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

Victimisation is defined by section 74(2) of the Act as follows;

“(2) For the purposes of this Part, victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a)    a complaint of discrimination made by the employee to the employer

(b)    any proceedings by a complainant

(c)     an employee having represented or otherwise supported a complainant

(d)    the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act

(e)    an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment

(f)      an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment or

(g)    an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Burden of Proof

Section 85A of the Employment Equality Acts 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 in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The WRC and the Labour Court have held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a presumption of discrimination is established and the burden of proof shifts to the Respondent.

In the case of Melbury Developments and Valpeters EDA 0917 the Labour Court stated as follows:

‘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.’

The Labour Court in the case of Southern Health Board v Dr Teresa Mitchell DEE 011 considered the extent of the evidential burden which a Complainant must discharge before a presumption of discrimination can be made out. The Labour Court stated that

‘The first requirement of Article 4 of the Directive is that the claimant must "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.’

In Graham Anthony & Co Ltd. v Mary Margetts EDA038, the Labour Court remarked:

‘The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.’

In deciding on this complaint, therefore, I must first consider whether the presumption of discrimination on the ground of race has been established by the Complainant. It is only where such a presumption has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

Comparator

Section 28 of the Acts in relevant parts provides that:

28.The comparators

(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;

The issues for consideration by me are whether or not the Complainant was (i) discriminated against by the Respondent on the ground of race in her conditions of employment (ii) harassed by the Respondent contrary to Section 14 (A) and (iii) subjected to victimisation in terms of Section 74 of the Acts.

The cognisable period for the within complaint is from 2 September 2023 to 1 March 2024.

I note that the Complainant was born in Nigeria and moved to Ireland with her family when she was 8 years old.  I note that the Complainant completed a degree in Midwifery.  The Complainant commenced employment with the Respondent Hospital on the 1 April 2019.

I note that the Complainant became an Irish citizen in 2021.

I have carefully examined all of the evidence adduced in the within claim. Based on the evidence heard, I find that Complainant has not established that she was subjected to less favourable treatment on grounds of her race as claimed.

I found the testimony of Ms H, Director of Midwifery persuasive. I am cognisant that the Complainant had a back to work meeting with Ms G following a period of sick leave and it was noticed that she had gel nail covering.   I note that Ms G brought the matter to the attention of the Director of Midwifery given that the Complainant was in breach of the “bare below the elbows policy” and in the interests of patient safety. I note that an instruction was given to Ms F of Infection Control to have a walk around and see if anyone else was in breach of the policy and if so, to request them to get the gel nail covering removed.

Ms H stated that the Complainant was the only person wearing BIAB nails and as the Emergency Room was quiet at that juncture, a request was made that if possible the Complainant could go off duty to get the gel nails removed and then come back to work. Ms H stated that as the Complainant was working in the Emergency Room, it was a health and safety risk. 

Ms H stated that subsequently one of the Complainant’s colleagues in a different area (post natal section) was also in breach of the policy and had inappropriate gel nail covering and was asked if it could be removed on her lunch break before her next shift.

Ms H stated that the Respondent has a strict policy with regard to the “bare below the elbows” protocol in the interests of patient safety and in order to prevent infection as infection is one of the hospital’s biggest risks.

Having reviewed the evidence submitted, I note that the Complainant following a period of sick leave had a return to work meeting and it was noticed that she was wearing gel nail covering. The Complainant was returning to duty on the morning in question in the Emergency Room. I note that the Complainant accepted that she was in breach of hospital policy by wearing gel nails.

I accept the evidence given by Ms H, Director of Midwifery with regard to the inherent health and safety risks in wearing gel nail covering, in particular with the risk of infection.

I am satisfied in the within matter that the Respondent has demonstrated that there was a breach of hospital policy and the request to have the gel nails removed and then return to duty was complying with the health and safety requirements of the hospital.  

In all of the circumstances of the within matter, while the Complainant has alleged that she was discriminated against on grounds of race in relation to the incident of 5 September 2023; I find that the Complainant has not established a nexus to the alleged treatment and her race. Accordingly, I am satisfied that the Complainant has not established a prima facie case of discrimination on the race ground and/or harassment.

I further find that the Complainant has not established facts to demonstrate that she was subjected to victimisation within the meaning of Section 74 of the Employment Equality Acts. Therefore, her complaint fails.

I find that the Complainant was not discriminated against by the Respondent on grounds of race.

I find that the Complainant was not subjected to harassment by the Respondent in terms of Section 14 A of the Acts.

I find that the Complainant was not subjected to victimisation within the meaning of Section 74 of the Acts.

Race, Employment Equality Acts, harassment, victimisation