Complainant

Respondent

Parties

Gediminas  Gvazdauskas

Health Service Executive

Representatives

Ms Carla Fusciardi Wallace BL

instructed by Williams Solicitors

 Mr Eamonn Ross

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-00053111-001

05/10/2022

The Complainant is a Lithuanian national who has lived in Ireland for most of his working life. He had worked for an outsourced contracting facilities company in the National Forensic Mental Health Service (“NFMHS”) in Dundrum, South Dublin for about 14 years when the service moved to Portrane in North County Dublin and the contract was awarded to a new provider. At that time the Complainant decided not to transfer to the new provider and instead applied for a job as a porter/driver directly for the NFMHS through an open competition. He was successful in his application and was awarded the post subject to certain pre-employment checks. This process was managed by CPL but the requirements were set by the employer, the HSE. One key requirement was that the Complainant had to provide a copy of both his driver’s licence and a driver’s statement from the National Driver Licence Service (“NDLS”).  A driver statement is a copy of a driver’s record with the NDLS.

As a Lithuanian national the Complainant held a Lithuanian driver’s licence. He discovered this meant he could not provide a driver statement from the NDLS. There was extensive engagement between the Complainant and CPL on this issue but ultimately it was determined that he did not meet the requirements of the competition and the job offer was revoked. He submitted a complaint of discrimination on the grounds of race against both the HSE and CPL. It was accepted by the HSE and the Complainant that the HSE set the criteria and was the potential employer for the purposes of this act. CPL’s role was limited to administering the HSE’s recruitment campaign.

The Complainant has brought a complaint under the Employment Equality Act alleging that the decision to refuse him the post of driver/porter constituted indirect discrimination on the basis of his nationality. He does not allege that the HSE set out to behave in a discriminatory fashion but instead argues that their requirement for a NDLS driver statement had the effect of discriminating against non-nationals in the recruitment process.

The Complainant provided evidence under affirmation. His counsel, Ms Carla Fusciardi Wallace BL, made oral and written submissions on his behalf.

The Respondent denies having discriminated against the Complainant. He was unable to fulfil a key requirement of the role he had applied for. Providing an NDLS driver’s statement was cited as a requirement of the role from the outset of the competition. The Complainant’s role involved driving and they needed to provide this documentation. Drivers’ licenses are unrelated to race and any person of any nationality can obtain an Irish driver’s license once they are a resident. 

The Respondent allowed multiple extensions of their deadlines for the Complaniant to fulfil the requirement of a driver’s statement but he could not.

The Complainant came to Ireland twenty years ago following the accession of his county, Lithuania, into the EU. He obtained a driver’s licence around fifteen years ago in Lithuania.

He worked with the NFMHS via various contractors having started out as a cleaner fourteen years ago. He had risen to the post of site manager when the facility in Dundrum was closing. At this point he wanted to become a HSE employee and progress his career within the organisation. He saw the porter role as way in and leaving aside the issue of the driver statement there is no dispute that he was qualified for the role.

In December 2021, following a successful interview, the Complainant was placed on a panel for permanent Driver/Porter roles. He received a letter from CPL indicating that he would need to pass a pre-employment clearance process before getting the job. This required him to a submit a number of documents including a driver’s licence and driver’s statement. These were identified as special conditions of the role from the outset of the process.

A driver’s statement can normally be obtained from the NDLS and provides the history of the licence holder, for instance it will record any pervious licences they held including any learner licences. The statement also contains the total number of penalty points held by the driver.

The Complainant’s evidence was that he had previously had three penalty points and the RSA had issued a letter earlier that year noting their expiration and confirming at that point he had no penalty points on his record. He submitted this June 2021 letter to CPL when the NDLS would not give him a statement. In February 2022 CPL responded to inform him that this was not sufficient and that he needed to provide a NDLS driver’s statement. Over the course of March 2022 Complainant continued to engage with both CPL and NDLS who informed him that they could not issue a driver’s statement because they did not hold a record on the Complainant’s licence. CPL reverted to the HSE hiring manager who confirmed that this was a prerequisite for the role and outlined an understanding that the Complainant could only drive on an EU licence for a maximum of 12 months.

The Complainant arranged Garda vetting and vetting from the Lithuanian police. The NDLS confirmed to him on a number of occasions that he could not obtain any statement from them because he did not hold any record with them and CPL tried to verify this directly with the NDLS in April but due to GDPR reasons the NDLS would not engage with CPL directly about the Complainant. On the 11th of April the Complainant was able to obtain an email from the NDLS confirming he held no penalty points. He also obtained a further letter from the Lithuanian licensing authority which did not record any offences.

In May CPL, on behalf of the Respondent, confirmed that the Complainant must have a NDLS drivers statement and withdrew the job offer. The Complainant appealed this decision but this appeal was rejected in June 2022 as the decision to withdraw the offer was based on the Complainant not furnishing a statement as required by the job specification.

My understanding from the evidence before me is that as the Complainant’s licence was Lithuanian the Irish licensing authority, the Road Safety Authority which the NDLS operates as a part of, did not maintain a record on it and as such could not issue a statement.  It appears that if the RSA/NDLS holds records on foreign licences these records are temporary and exist only where some penalty is live and associated with the driver. The Complainant’s unchallenged evidence is that it was not possible for a person with a clean foreign licence to obtain a driver statement.

There were a number of questions raised about whether the Complainant should have an Irish driver’s licence because he is a resident in Ireland. From the excerpts from RSA guidance provided by the HSE it seems that an EU driver can continue on their EU licence in Ireland until its expiration. The 12 month restriction the HSE hiring manager suggested in the course of their correspondence with CPL and which the HSE relied on in their submissions, appears to relate to Non-EEA licences. The question arises as to whether the Complainant should had ever have held a Lithuanian licence given he was a resident in Ireland when he obtained it. However, I am not sure any of these issues matter in this case. The Respondent’s requirement that the Complainant had to obtain a NDLS driver’s statement was separate to their requirement that he had to have a driver’s licence. The Respondent accepted the Complainant’s Lithuanian driver’s licence and they did not make an Irish licence a prerequisite of obtaining the post. The HSE did not appear to have had any expressed issue with hiring Driver/Porters who held foreign driver’s licences and not Irish driver’s licences. 

Despite the Respondent’s apparent willingness to accept applicants who hold a foreign driver’s licence their requirement for a NDLS driver statement meant that applicants holding foreign drivers’ licences were indirectly restricted from obtaining the post.

Mr Ross for the HSE correctly pointed out that this restriction does not relate directly to nationality and that people of all nationalities hold Irish drivers’ licences. However, I do accept that this requirement is indirectly linked to nationality in that Irish people are more likely to have Irish drivers’ licences and people of different nationalities, such as the Complainant, are more likely to have drivers’ licences from other countries. 

Sections 6 and 8 of the EEA prohibit employers from discriminating against employees on the basis of race. For the purposes of the complaint before me, the most relevant parts are:

Section 6 (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’) which—(i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,

[…]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—[…] 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.—(1) In relation to—(a) access to employment, […..] an employer shall not discriminate against an employee or prospective employee

Indirect discrimination is outlined in Section 22 in relation to the gender ground. It is expanded to include other grounds, including race by Section 31.

Section 22 (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.

The burden of proof in EEA complaints is set out at Section 85A.—(1) 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.

[…] (4) In this section "discrimination" includes—(a) indirect discrimination,

On review of the facts before me I am satisfied that the Complainant has established indirect discrimination occurred. The Respondent, seemingly unintentionally, prohibited applicants with foreign licences from taking up the Driver/Porter role by their requiring a NDLS driver statement which drivers with foreign licences could not obtain. I think it is reasonable to conclude that an Irish driver is far more likely to have an Irish driver’s licences than a driver of a different nationality, such as the Complainant. The apparently neutral requirement to obtain a NDLS driver statement placed non-Irish nationals at a disadvantage in the recruitment process.

Section 22(b) provides a defence for an employer in that if the indirectly discriminatory requirement is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary then the indirect discrimination is not considered discrimination as prohibited by Sections 6 and 8 of the Act.

On this issue it is to be noted that, from the evidence available to me, the Respondent did not put forward and sort of aim or justification to the Complainant or CPL during the course of their engagement in early 2022. They simply restated the requirement and emphasised that it was flagged from the outset of the recruitment process. The hiring manager’s only feedback on the issue aside from this related to an apparently mistaken view that the Complainant should have taken up an Irish licence after 12 months, I have already outlined why that issue is not relevant.

The Respondent’s submissions outline an obviously legitimate aim to their policy. They were hiring drivers and as an employer they needed to have an understanding of any endorsements or impediments placed on those drivers’ licences. However, I am not at all satisfied that they have established that the means of pursuing this aim, particularly in this case, were appropriate and necessary.

The Complainant provided written confirmation from the licensing authority dated June 2021 that he had no penalty points. The licencing authority then confirmed that this was still the case by way of email in April 2022. The Complainant had also provided a statement from the Lithuanian licensing authority which recorded no issues with his licence. The Respondent did not accept these documents nor did they seek to address the issue that the Complainant’s could not obtain a NDLS driver statement though he fulfilled every other criteria. They simply restated the requirement again and again. The Respondent has provided no evidence as to why this was the case and no decision maker gave evidence on the requirement for the Complaniant to have a NDLS driver’s statement. There was no direct evidence provided on the decision not to accept the documentation the Complainant had submitted in lieu of a driver’s statement.

I would note that from the email exchanges provided to me CPL’s staff did try to engage with the Complainant extensively and seemed to have tried to get his pre-employment checks over the line. They provided evidence of the appeals process in which it was clear that they did not set or review the eligibility criteria, they just ensured those criteria were met. It was the Respondent’s requirement for a NDLS driver statement and nothing else which meant the Complainant was rejected for the role he had won through open competition. This was indirectly linked to his nationality.

For the reasons outlined above I find that the Complainant was discriminated against by the Respondent in contravention of the EEA.

Redress

Section 82 of the EEA sets out my jurisdiction in ordering redress for discrimination.

Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(e) an order that a person or persons specified in the order take a course of action which is so.

Section 82 subsection 4 sets out the limits on any award of compensation.

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(I) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

or

(b) in any other case, €13,000

The Complainant was not in receipt of remuneration at the date of the reference of the case. In the circumstances, the maximum amount that I can award under section 82(4) of the EEA is €13,000. The Complainant was barred from taking up a permanent public sector role he had won through open competition. This role was with a service he had a long-term working relationship with and in which he had reasonably hoped to progress. In terms to probable damage to his career progression the implications of this discrimination were significant and as such the maximum award is appropriate.

The Respondent is the largest employer in the country. Any discrimination in its recruiting policy is, by its nature, significant in terms of national adherence to the various equal treatment directives and the rights of people in Ireland under those directives. As such I am of the view it is appropriate to order the HSE to review their hiring criteria for driver roles in light of this decision and to liaise with the Irish Human Rights and Equality Commission in this review, cognisant of their role under Section 42 of the Irish Human Rights and Equality Commission Act 2014.

I find that the complaint is well founded.

I order the Respondent to pay the Complainant €13000 in compensation.

I order that the Chief People Officer of the Respondent initiate a review of the Respondent’s selection criteria for driver roles in light of this decision and to write to the Chief Commissioner of the Irish Human Rights and Equality Commission within 6 months of the date of this decision outlining the outcome of that review and inviting the Commission’s feedback as to whether the Respondent’s revised position is consistent with its obligations under Section 42 of the Irish Human Rights and Equality Commission Act 2014.