Complainant

Respondent

Parties

Ciara  O'Grady

Independent Clinical Services Limited trading as Scottish Nursing Guild

Representatives

  In person

Cathy McGrady B.L. instructed by DWF (Ireland)  LLP

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-00066552-001

09/10/2024

The complainant applied for registration as an ICU agency nurse with the respondent on 10th April 2024. Due to a period of maternity leave from August 2022 until June 2023, the complainant was deemed to be outside of the respondent’s eligibility criteria. The complainant was advised that applicants who had been on maternity leave prior to their application to register, were required to be back at work for two months and be able to demonstrate 3 years of clinical experience in their area of expertise prior to the period of maternity leave.

The complainant stated that she had six years of experience (albeit fragmented by 2 senior positions outside of ICU). When the complainant queried the three-year experience requirement, she was informed that it was three years continuous experience prior to the commencement of maternity leave.

It became clear at the adjudication hearing that the relevant policy did not state that three years continuous service was part of the eligibility criteria. The policy stated that the requirement was for the worker to have “a minimum of 3 years working in that environment prior to the maternity leave”.

At this point in the adjudication hearing, there was a brief recess for the respondent’s representative to take instructions.

On resumption, the respondent conceded the claim on the basis that the requirement to have “three years continuous service” was not specifically stated in the policy although it should have been, and the complainant’s application had not been successful due to the strict application of the intended policy requirement. The respondent’s representative then made a brief submission in relation to the respondent’s absolute commitment to patient care and the reasoning for the strict application of the eligibility criteria in circumstance where agency nurses working in ICU must be able to “hit the ground running “to provide the highest level of care to patients. Counsel for the respondent asked that this be taken into consideration in respect of any compensation that is to be awarded to the complainant.

Respondent name:

Counsel for the respondent stated that Independent Clinical Services Limited is the correct name of the respondent entity for the purposes of the adjudication decision. The complaint had been lodged against the Scottish Nursing Guild which is the trading name of the entity cited by the respondent. The complainant, who represented herself at the adjudication hearing, had no knowledge of the legal entity cited by the respondent but accepted the respondent’s position on the condition that it did not cause any difficulties in respect of the complaint she had lodged. Accordingly, the correct legal entity is named in the title of this adjudication decision.

Evidence

Despite conceding the complaint, the respondent’s Quality Assurance Director wished to briefly give evidence at the adjudication hearing. The evidence was given by affirmation. The witness stated that she had been an ICU agency nurse for 15 years. In respect of minimizing the risk to patients and protecting human life, the witness stated that a last-minute placement into an Intensive Care Unit (ICU) requires that the agency nurse be completely competent and up to date with changes to clinical practice and equipment changes etc. The witness also stated that the motivation for and application of the policy in question was with priority of patient care and safety in mind.

By way of a response to the evidence, the complainant completely accepted the priority of patient care but stated that the nursing profession is a female led workforce and that women who have been on maternity leave should not be disadvantaged. The complainant argued that there are other ways of assessing competence and that these should be explored so that there is no discrimination experienced by those who are absent from the workforce on protected leave.

I note the position of both parties in relation to the complaint.

Shortly after the hearing commenced and following a brief recess to seek clarity on the wording of the relevant policy and the application of same, the complaint was conceded by the respondent.

As the claim was conceded, the only matter for consideration is the level of compensation to be awarded to the complainant.

In assessing compensation, I have considered the matters raised by the complainant in respect of her application to register as an ICU Nurse with the respondent and the respondent’s actions in not processing the application based on the application of its policy.

In all the circumstances of the complaint, I find that the complainant should receive €7,000.00 in compensation for the discrimination she experienced in pursuing her application to register as an agency nurse with the respondent.

The complaint is well founded on the basis that it was conceded at the adjudication hearing. The respondent is directed to pay the complainant €7,000.00 in compensation.

Access to employment, discrimination