Complainant

Respondent

Parties

Vitor  Oliveira

St Vincent's University Hospital

Representatives

  self

Andrea Tancred 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-00066661-002

13/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00066661-001

13/10/2024

The Complainant worked at St. Vincent’s University Hospital from November 2017 to August 2024. In April 2024, he applied for the Senior Finance Manager, Grade VIII position (Campaign HR24I221) at St. Vincent’s. This role was initially advertised internally only, and the essential qualification criteria required a recognised professional accountancy qualification from ACA, ACCA, or CIMA only. The Complainant was not shortlisted for the role as the Respondent deemed the qualification not to be equivalent.

Despite his extensive experience and qualification from an equivalent accountancy body in another jurisdiction, he was not shortlisted for the role. The position was subsequently re-advertised externally after no internal candidates were shortlisted.

 The Complainant alleges indirect Discrimination Based on Race. The job advertisement for the Senior Finance Manager role at St. Vincent’s only accepted candidates with ACA, ACCA, or CIMA qualifications. This exclusion of equivalent foreign qualifications it is alleged constitutes indirect discrimination under the Employment Equality Act 1998-2015. This arises as the requirement, while appearing neutral, disproportionately disadvantages candidates from other countries who possess recognised but non-Irish qualifications, as specified in the job campaign which are commonly pursued by Irish accountants.

 This criterion effectively places an unnecessary barrier on professionals like the Complainant who hold qualifications from equivalent accountancy bodies.

The Complainant stated that his qualification is accepted by the Health Service Executive (HSE). The HSE, which regulates all of the public health services in Ireland, accepts qualifications from other jurisdictions. The Complainant’s foreign accounting qualification has been recognised by other hospitals within the HSE, including those within the Ireland East Hospital Group (IEHG), which St. Vincent’s is part of. By not aligning with the HSE’s recruitment standards, St. Vincent’s unnecessarily restricted the pool of eligible candidates for the role and excluded qualified professionals like the Complainant.

The Respondent is a public body, and it is therefore required to implement a clear and transparent recruitment process for any vacancy that becomes available within the organisation. The job advertisement set out clear essential criteria in which a candidate was required to demonstrate on their application. The Complainant did not demonstrate that he had the essential criteria and as such, he did not meet the required criteria to reach the next stage of the recruitment process.

The required professional qualification is not limited to a qualification only attainable in Ireland, these are professional bodies recognised internationally.

During the grievance procedure the Complainant was asked to provide evidence to show that the qualification he held was equivalent to the required qualifications, however, he was unable or unwilling to provide such documentation, even though Ms Bracken, the Finance Director had requested it on several occasions.

It is worthy of note that the Respondent has a Study Policy in place and fully supports all its employees to avail of this benefit. The Complainant was one of these employees who availed of the support. Between the years of 2019 and 2024, the Complainant was provided with 15 days paid study leave. In 2020 the Respondent funded the cost of the Complainant’s ACCA exams to the total amount of €1,412.99. A payment of €706.33 was made in January 2020 and a further payment of €706.66 was made in July 2020.

For the role in question, the Respondent required an accounting qualification from one of the recognised professional accountancy bodies; ACA, ACCA or CIMA, all of which provide globally recognised qualifications. It is worthy of note that each entity funded under Section 38 of the Health Act 2004, is an independent employer and has autonomy in the design of their job specifications.

Indirect Discrimination:

I note that in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 Indirect Discrimination is defined as follows:

indirect  discrimination

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Direct discrimination occurs where a person with a protected characteristic is treated differently from, or less favourably than, another person without that characteristic. Indirect discrimination, on the other hand, occurs where a requirement or condition which on the face of it applies equally to both men and women, can be seen on closer examination in fact to have a disproportionate adverse impact on members of one sex rather than another. A requirement for an employee to fulfil minimum height or weight requirements would tend to exclude more women than men and more persons of one ethnic background than another from access to that position. In requiring such criteria or provisions to be objectively justifiable, European and Irish law use the tool of indirect discrimination to separate out those criteria which are genuinely necessary and those which in effect are disguised discrimination. In other words:

“Indirect discrimination looks therefore to substantive equality rather than formal. It recognises that treating individuals in the same manner … might create inequality because of differences between individuals exhibiting particular protected characteristics.”

Prima Facie:

The Complainant meets the Prima Facie test that he was indirectly discriminated against. He studied accountancy in Brazil. He holds a recognised accountancy qualification that has international standing. His qualification is the preeminent qualification in Brazil.

The Prima Facie testis not an onerous test. It requires some facts that tend to show the possibility of discrimination. It is not a probative burden.

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 must ‘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)

The facts show that in Ireland the qualifications listed are more likely to be possessed by Irish candidates. This means the criteria as detailed favours Irish candidates over candidates in other jurisdictions where that qualification is not the dominant one and another professional body is required or is the preferred accounting body. That is the case in Brazil as the qualifications required by the Hospital are not the required or preferred accounting qualifications there. The Brazilian accounting qualification has high standing internationally.

Comparator/Hypothetical Comparator:

In Regan Employment Law 2nd Ed chapter 17, I note the use of a hypothetical comparator is referenced:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required

I note the case of Toker Developments Limited and Edgars Grods (Determination No EDA105) on the issue of a hypothetical comparator the Labour Court stated: “It is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case. No such evidence was adduced and it would clearly be impermissible for the Court to reach conclusions of fact based upon merely supposition or speculation.”

In this case that requirement has been met. The Complainant opened to the tribunal facts about the accounting regulatory body in Brazil and how many members belonged to that body. Also, the Complainant opened an approved list of accountant qualifications and bodies that have international standing. His qualification has such recognition.

Burden Shifted:

It is also important to note that once a prima facie case has been established it shifts the burden onto the Respondent to show that discrimination or prohibited conduct has not occurred. I note the force of this presumption as referenced in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022:

The burden of proof

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In the normal course of events, it is up to the person who is making the case to prove their case, i.e. the burden of proofrests on the claimant. However, in practice it can be very difficult for a victim of discrimination to prove their case and generally claimants have little, if any, direct evidence of discrimination. European law recognises those difficulties in how it deals with the burden of proof, and in particular in recognising that certain matters such as why an employee is being treated in a particular way may be peculiarly within the employer’s own knowledge. Shifting the burden of proof can provide a real and practical tool for many people seeking to challenge practices which they believe to be discriminatory or which they know to have had a discriminatory outcome. By recognising that sometimes the burden of proof should be shifted from employee to employer, employees are protected from having to surmount practically insurmountable evidential hurdles which could render nugatory the effectiveness of European law rules on sex equality.

The Supreme Court in Donnelly v the Minister for Social Protection [2022] refused to allow an appeal that prima facie evidence of discrimination in legislation that shifts the burden of proof that rests on a plaintiff, that legislation was contrary to the Constitutional guarantee of equality pursuant to Article 40.1. The Court acknowledged the difficulties faced by such a plaintiff but considered that to be a consequence of legislation enjoying a presumption of constitutionality. The decision illustrates the huge signification of the legislative shifting of the burden of proof that is a fundamental part of European equality law.

Objective Justification:

An assertion is not enough to meet the test of objective justification. I note in in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 what a Respondent must show to meet the test:

Objective justification

2-201

Once a complainant coming within a protected group can establish the existence of a provision, practice or criterion which puts them at a particular disadvantage, or that a group made up predominantly of members of one group are treated less favourably than the comparator group, then an employer will have to provide objective  justification as provided for in the Employment Equality Acts “by a legitimate aim and the means of achieving the aim are appropriate and necessary”. Again the wording of the Employment Equality Acts reflects verbatim the wording of the Directives and, in turn, reflects the text for  objective  justification as developed by the European Court of Justice as far back as its decision in Bilka Kaufhaus.367 The Labour Court in its decision of the Department of Justice, Equality & Law Reform v the Civil Service Public & Services Union368 adopted the test for  objective  justification in the UK decision of Barton v Investec Henderson Crosthwaite Securities Ltd369 as follows:

“(1) that there were objective reasons for the difference;

(2) unrelated to sex;

(3) corresponding to a real need on the part of the undertaking;

(4) appropriate to achieving the objective pursued;

(5) it was necessary to that end;

(6) that the difference conformed to the principle of proportionality;

(7) That was the case throughout the period during which the differential existed.”

2-202

Any reasons advanced by an employer which constitute objective justification must be cogent and sufficiently specific to the circumstances of the case. In Inoue v NBK Designs Ltd,370 the Labour Court rejected the objective justification proffered by the respondent which was the improvement of efficiency in the administrative function performed by the two part-time employees as being “non-specific and general”.

The Finance Director gave evidence that the legitimate aim was to ensure that at a relatively senior accountant role the candidate had the qualification that demonstrated knowledge of relevant Irish Accounting Regulatory requirements. That is a legitimate aim. However, the Respondent also must show that it is Proportionate. The Respondent does provide for study leave and financial support so that the necessary subjects required by the relevant and preferred accounting bodies specified in the competition can be obtained. That support has been provided to the candidate. A number of questions arise. Is the requirement for these qualifications appropriate to achieve the aim of ensuring a senior accountant has the required accountant knowledge for this jurisdiction and is it necessary?

I find that the requirement to have the required accounting qualification as specified is necessary to meet specific regulatory obligations at a senior accountant level which are ACA, ACCA, or CIMA qualifications. While the Complainant has an accounting qualification it is not equivalent as there are unique regulatory requirements in this jurisdiction that must be met, and a detailed understanding and assessment of those requirements are met by having the specified qualifications. The measure is necessary and appropriate to achieve that aim. The measure is not excessively disadvantageous as the Complainant will be given some exemptions by the relevant bodies and his employer has provided support so that he can obtain the necessary qualification.

As the measure is objectively justified, I find that the Complainant has not been discriminated against on the ground of race.

CA-00066661-001:

I find that the complaint made under the Equal Status Act is misconceived as the matter complained about is employment related and not a service. I dismiss that complaint as misconceived and find that the Respondent has not engaged in prohibited conduct.

CA-00066661-002:

I find that the Complainant was not discriminated against on the ground of race as the measures complained about are objectively justified as detailed. This complaint is not well founded.

I find that the requirement to have the required accounting qualification as specified is necessary to meet specific regulatory obligations at a senior accountant level which are ACA, ACCA, or CIMA qualifications. While the Complainant has an accounting qualification it is not equivalent to these qualifications; as there are unique regulatory requirements in this jurisdiction that must be met, and a detailed understanding and assessment of those requirements are met by having the specified qualifications. The measure is necessary and appropriate to achieve that aim. The measure is not excessively disadvantageous as the Complainant will be given some exemptions by the relevant bodies and his employer has provided support so that he can obtain the necessary qualification.

As the measure is objectively justified, I find that the Complainant has not been discriminated against on the ground of race.

CA-00066661-001:

I find that the complaint made under the Equal Status Act is misconceived as the matter complained about is employment related and not a service. I dismiss that complaint as misconceived and find that the Respondent has not engaged in prohibited conduct.

CA-00066661-002:

I find that the Complainant was not discriminated against on the ground of race as the measures complained about are objectively justified as detailed. This complaint is not well founded.

Race-Indirect Discrimination