Complainant

Respondent

Parties

Lijo  Chethikalam

Tallaght University Hospital Tallaght University Hospital

Representatives

  Self

Adrian Norton 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-00065909-001

11/09/2024

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

CA-00065909-002

11/09/2024

The Complainant holds a BSc in Medical Science. He was recruited to work as a phlebotomist and his employment commenced on or about May 2014. He received his degree in India.

The Complainant applied to CORU the regulator for Health Professionals to recognise his degree so that he could apply for Medical Scientist Roles. CORU provided the applicant with the choice to complete an aptitude test or to complete a level 8-degree project. That project would have to be supervised by a qualified person at his place of work.

The Hospital agreed to support the Complainant in so far as he detailed a proposal that they could supervise.

The Complainant believes that because he is a non-national he was subjected to excessive and arguably oppressive supervision because of race,  so that his project could not be completed.

The Complainant alleges the following:

I, LIJO CHETHIKALAM, have been employed as a phlebotomist at Tallaght University Hospital since January 23, 2014. I hold a Bachelor of Science (BSc) in Medical Laboratory Science and am a qualified Medical Scientist. Despite my qualifications, I was unable to enter the profession of Medical Scientist in Ireland earlier. Approximately two years ago, I applied for registration with CORU, the regulatory body for health and social care professionals. CORU accepted my degree as equivalent to an Irish degree. However, due to lack of experience in this profession for an extended period, the CORU Board recommended that I complete a Level 8 Research Project and back-to-work training to regain eligibility for professional practice.

As part of this process, Ann Leonard and two other scientists were assigned to guide me in completing my project by Ciaran Love, the Laboratory Manager at Tallaght University Hospital. The project guidance commenced on December 20, 2023, following an initial meeting with Ann Leonard. However, during this period until May 2, 2024, it became apparent that there was no genuine intention to submit the required Project Proposal Form to CORU. Instead, I was directed to undertake tasks that were only relevant after the project had been approved. Despite these concerns, no effort was made by Ms. Leonard to move forward with submitting the proposal for approval.

In addition, I believe that I was subjected to psychological harassment and an attempt to undermine my self-esteem through a series of negative and discouraging emails from Ann Leonard. Her actions, I believe, were deliberately aimed at preventing my progression into the profession of Medical Science. I suspect that this behaviour may be motivated by discrimination based on my ethnic background. Throughout this time, I felt ignored, intimidated, and unfairly obstructed from advancing in my career.

I was also provided with the option to sit for a written aptitude exam, which I declined, as I had been given the opportunity to work on the research project within the hospital, as offered by my laboratory manager, Ciaran Love.

On May 9, 2024, I received a distressing email from Ann Leonard, which contained 89 comments and revisions, making it nearly impossible to address all of them satisfactorily. Even at this stage, there was no movement toward submitting the project for approval.

On May 13, 2024, I met with Occupational Health and subsequently emailed Debbie O’Brien, the HR Business Partner at Tallaght University Hospital, regarding my grievances. In accordance with the hospital’s grievance policy, I formally filed a complaint with Ciaran Love on May 27, 2024. I had been assured that I would be treated fairly and equally, and I submitted all relevant documents by June 2024.

On July 28, 2024, Mr. Love visited me at my department (Phlebotomy) and reassured me that the project proposal would be submitted shortly. However, later that same day, I received an email asking whether I was satisfied with an informal resolution at Stage 1 of the grievance process, and if so, whether the complaint could be closed without any record on file.

Subsequently, on July 1, 2024, I received partially corrected documents from Ann Leonard and her team. Despite my renewed hope and substantial effort in addressing the corrections, I resubmitted the documents on July 3, 2024. The following day, on July 4, 2024, I received an email from Ciaran Love informing me that the Innovation Hub, led by Ann Leonard, could no longer supervise the project and that no alternative solution was available. As a result, the project proposal could not be submitted to CORU.

Throughout this period, Mr. Love made false promises that the project would be completed and pressured me into withdrawing my complaint. However, the project proposal remains unsubmitted, and Stage 1 of the grievance process, initiated on May 27, 2024, has been unnecessarily prolonged by Mr. Love.

As of now, I have wasted 10 months working on this project without any meaningful progress. I am a full-time employee of the hospital, my wife is a full-time nurse, and we have four children. This ongoing situation has adversely affected my family life, causing me severe anxiety and difficulty sleeping. I firmly believe that I have been the target of discrimination and racism, as I suspect my ethnic background is the reason I have been denied the opportunity for career progression.

In the light of these facts, I formally request that this grievance be escalated and investigated in accordance with the appropriate procedures. I seek assurances that I will be treated fairly and that steps will be taken to address the discrimination, psychological harassment, and undue delays that have significantly impacted my professional and personal life.

LIJO CHETHIKALAM

Phlebotomist

Tallaght University Hospital

The allegation made against work colleagues and the Hospital are denied in their entirety. Far from being oppressive and difficult the Hospital and senior staff have gone out of their way to facilitate the Complainant. There have been numerous review meetings and follow up emails to help the candidate achieve his desired goal. There have been at least 11 review meetings commencing on the 29th of November 2023 and up to the 3rd of May 2024.

The Complainant carries the burden to make out a Prima Facie case that show based on facts an inference of discrimination has been made out.

It is not enough to rely on the fact that the Complainant is a non-national. He must make out a case that because he was not Irish, he received less favourable treatment based on a fact that indicates this could be so. In his detailed submission the Complainant states that he suspects that the corrections and requirements to improve his proposal arise because he is not Irish.

The Complainant opened an email dated 28th of June 2024 from his project supervisor as evidence of less favourable treatment. In that email the Complainant relies on the phrase “this needs a bit of work we have added some details and guidance in the comments, please review and update as you think appropriate? This will need to be agreed and signed off”. He states this email is evidence that his proposal was very near the acceptable level.

On the plain reading of that email, it was not saying that the proposal was close to being approved, rather that more work was required, and formal approval was still required. This difference in interpretation may arise due to the Complainant’s fluency relating to phrases that are used diplomatically. To say that a proposal still needs a bit of work and to qualify that remark that it still needs to be agreed and signed off, does not mean that it is close to sign off.

1.Prima Facie Case:

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment.

However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58).

I note in Bolger, Bruton and Kimber, Employment Equality Law 2nd Ed. 2022:

The Burden of Proof

11-193

Having found an appropriate comparator, the next hurdle for a complainant to overcome is to discharge the burden which the law places on him or her to show that the difference in pay is due to discrimination on one of the prohibited grounds. This is always difficult but has been made even more so in recent times by the changing nature of paid work. The increased deregulation of the workplace facilitates pay systems which may be lacking in transparency by enhancing pay with extras such as commission, flexibility payments, performance increments and other such bonuses. This makes it difficult for the complainant to show that their lower wage is on prohibited grounds. As set out above at para.11-29 the CJEU developed a shifting burden of proof—once the complainant has established a prima facie case of discrimination by showing a difference in treatment, the burden of proof shifts to the employer to justify the difference of treatment. This shifting burden of proof is contained in s.85A of the Employment Equality Acts.

And at 11.29 it states the following:

11-29

The CJEU has made very significant decisions in this area which can ease the complainant’s burden of proof, by shifting the burden of proof to the employer to justify a difference in pay if the complainant establishes that he or she is engaged in like work with an appropriate comparator.36 The Court held early on that provision should therefore be made to ensure that the burden of proof shifts to the respondent when there is a prima facie case of discrimination. In Enderby v Frenchay Health Authority,37 it held that where significant statistics disclose an appreciable difference in pay, art.119 required the employer to show that the difference in pay is based on objectively justified factors unrelated to any discrimination on grounds of sex.

The Complainant was accompanied by friend for support and at a point in the hearing was allowed to give his perspective on the complaint as he had been approved by CORU and holds a master’s degree from an Indian University. However, his case was different because he had a post graduate qualification. While not initially called as a witness he was allowed to address the hearing about the perception that the Complainant was unfairly treated. He believed that he should be allowed to continue with his proposal.

The Prima Facie test as set out in employment equality law was explained to the Complainant and to his friend and a break took place so that the Complainant could prepare and detail the link or cause between less favourable treatment and race.

On reconvening the Complainant was asked did he understand the test and what was required to be established to move the burden of proof onto the Respondent. He said he did understand what was required.

The fact that the Respondent has not signed off on the project proposal is not evidence that could give rise to an inference discrimination by itself. This would also occur if an Irish person failed to meet the necessary standard when writing their proposal.

The Complainant is on the top of his current scale and has a legitimate aspiration to advance in his career. He had a choice between an aptitude test and a research project at level 8 standard. He chose the project route. His supervisor is also on the teaching faculty at Trinity College Dublin, is a doctor qualified as a medical scientist and is highly experienced and qualified in the area. The procedure she has applied is the same that she applies at Trinity College Dublin when approving student proposals  

The Complainant has failed to provide any factual evidence that would meet the test of a prima facie test. He feels unfairly treated and held back. His main assertion is he suspects. The facts show an employer attempting to help and not to hinder this Complainant. The allegations made against the Employer have no merit as their efforts have not been oppressive rather constructive so that the necessary standards and clarity could be achieved in order to supervise his project.

2. Secret Phone Recordings:

The Complainant had asked for secret or covert recordings to be opened at the hearing. The Respondent objected to this request. Secret recordings maybe admissible in evidence. A recording may have probative value depending on the context of that recording; however, a question that the Adjudicator asked was how necessary was reliance on such evidence? That evidence is being challenged as highly selective and one sided by the Respondent. That evidence does not establish a causal connection with alleged less favourable treatment because of race. It may record details of improvements required; however, that does not show a link between that feedback and less favourable treatment because of his race.

 This is not about being treated unfairly or harshly which is absolutely denied by the Respondent and the recordings it is alleged reveal unfair treatment. It is about demonstrating a link between a ground as detailed in the Act and less favourable treatment when compared to a comparator and in this case an Irish person.

The Complainant wanted to open secret recordings of his meetings with his supervisor. I have declined that application as a recording cannot be questioned and the evidence is selected by the Complainant to detail the improvements required. That evidence does not in itself raise an inference of racial discrimination. The recording is under the control of the Complainant and what is produced and opened by him can only be viewed as one sided and biased. The height of the case being presented is a suspicion of racial discrimination because a proposal failed to meet the required standard and work colleagues did not want to reject the work, rather went out of their way to help the candidate.

The Complainant had asked for secret or covert recordings to be opened at the hearing. The Respondent objected to this request. Secret recordings maybe admissible in evidence. A recording may have probative value depending on the context of that recording; however, a question that the Adjudicator asked how necessary reliance on such evidence was if it does not go to meeting the prima facie test. On several occasions throughout the hearing the Complainant was asked to formulate what his prima facie case was. He stated that it was his belief that because he was not Irish by birth that in turn gave rise to less favourable treatment. That is not evidence that could ground a prima facie case as it is essentially a view and no more.

As the Complainant has failed to establish a prima facie case, I must dismiss his case.

The Complaints as set out in the complaint form are as follows:

Specific Complaint CA-00065909-001: I was dismissed for a discriminatory reason or for opposing discrimination.

I dismiss the complaint as the Complainant was never dismissed.

Specific Complaint CA-00065909-002 I have been discriminated against by my employer, prospective employer, employment agency, vocational training or other; I say that I have been discriminated against by reason of my Race; I say the respondent treated me unlawfully by discriminating against me in promoting me.

The Complainant has not made out a prima facie case and it follows that these complaints must fail.

“I say the respondent treated me unlawfully by discriminating against me in giving me training; I say the respondent treated me unlawfully by discriminating against me in victimising me; I say the respondent treated me unlawfully by discriminating against me in harrassing me; what is the most recent date of discrimination * 28/07/2024 Are you claiming a collective agreement contains discrimination provisions?”

These complaints are unfounded as no prima facie case has been made out to ground the claims based on race discrimination. No collective agreement was produced.

As the Complainant has failed to establish a prima facie case, I must dismiss his case.

The Complaints as set out in the complaint form are as follows:

Specific Complaint CA-00065909-001: I was dismissed for a discriminatory reason or for opposing discrimination.

I dismiss the complaint as the Complainant was never dismissed.

Specific Complaint CA-00065909-002 “I have been discriminated against by my employer, prospective employer, employment agency, vocational training or other; I say that I have been discriminated against by reason of my Race; I say the respondent treated me unlawfully by discriminating against me in promoting me.”

The Complainant has not made out a prima facie case of discrimination on the ground of race and it follows that these complaints must fail.

“I say the respondent treated me unlawfully by discriminating against me in giving me training; I say the respondent treated me unlawfully by discriminating against me in victimising me; I say the respondent treated me unlawfully by discriminating against me in harassing me; what is the most recent date of discrimination * 28/07/2024 Are you claiming a collective agreement contains discrimination provisions?”

These complaints are unfounded as no prima facie case has been made out to ground the claims based on race discrimination. No collective agreement was produced. As no prima facie case has been made out all the complaints must be dismissed. I find that the Complainant was not discriminated against on the ground of race.

Prima Facie-Race