Complainant

Respondent

Parties

Julie Kelly

Saint John of God Community Services

Representatives

Terry Gorry, Solicitor

Mark Comerford, 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-00065165-001

01/08/2024

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

CA-00065165-002

30/08/2024

These complaints, concerning discrimination on the race and gender ground are rooted in a decision of the respondent not to recognise the complainant’s level 8 Degree in Social Science as equivalent to HETAC[1] level 7 qualifications in social care and other qualifications prescribed by CORU, the Health and Social Care Professionals Council.  The complainant claims that, unlike two of her colleagues, one of whom, unlike her, is Caucasian and the other who is a man, her level 8 degree has not been recognised as adequate for consideration as a qualified social care worker. 

In 2002, when she was in college, the complainant was employed by SJOG as a relief social care worker in what was then known as the Carmona Services, now called Dublin South East Services.  She graduated from UCD in 2003 with an Honours Degree in Social Science and she continued to work for the respondent as a relief worker.  When a permanent social care worker position was advertised in 2006, the complainant decided that she would like to remain with the organisation and she applied for the job.  In her evidence at the hearing, she said that she understood that she was applying for a position that required a qualified person.  She said that she was offered the role on the premise that she had a qualification recognised by SJOG as suitable under the Health and Social Care Professionals Act 2005.

The complainant commenced in the permanent role in 2006 and since then, she has worked in a residential centre for adults with intellectual disabilities and serious behavioural challenges.  When she was recruited into the permanent role, in recognition of her four years as a relief worker, she was placed on point 2 of what is referred to in her contract of employment as “Salary Scale 3/81.”  There are 11 points on this pay scale and, by March 2015, she had reached point 11.  

SJOG salaries are funded by the HSE and are in line with HSE pay scales.  There are two pay scales for social care workers, “3/80” for qualified staff, and “3/81” for unqualified staff.  In her evidence, the complainant said that, when she was recruited, she was unaware that she was placed on the unqualified, 3/81 pay scale.  The only difference between the two scales is that the qualified, 3/80 scale, has 12 points, with the 12th point being a long service increment (LSI) paid after three years at point 11.  With effect from March 1st 2025, the salary at point 11 is €55,049 on both pay scales and the salary at point 12 on the 3/80 scale is €56,089, a difference of +€1,040.  At the hearing, the complainant explained that allowances for working on nights, weekends and public holidays are based on a percentage of the basic hourly rate and the actual difference in earnings between points 11 and 12 is more than €1,040.  She said that, while the 11th point of the scale (in June 2024), was €53,436, her actual gross earnings are around €67,000.  This represents an uplift of 25% on the basic annual salary at point 11.

In March 2018, when she had been three years at point 11, the complainant expected to be placed on point 12 of the 3/80 qualified pay scale.  In 2019, she discovered that she was still at point 11.  In 2020, due to the impact of Covid-19 in the unit where she worked, the complainant had no opportunity to address her salary issue.  In November that year, when she queried why she hadn’t been moved to point 12, she was informed that her Degree in Social Science did not meet the requirement for the 3/80 qualified scale.  The complainant’s position is that she was recruited as a qualified social care worker and she has been working in that capacity since 2006.  When the issue wasn’t resolved, in April 2021, she wrote to the HR department and claimed that her classification as an unqualified social care worker was discriminatory because colleagues from her college degree class and others with less service than her were on the qualified 3/80 scale and being paid the LSI.

The position of SJOG, as set out by Mr Comerford at the hearing, is that the complainant has not been discriminated against and that there are reasons why the employees she has presented as comparators are on the 3/80 qualified pay scale.

Registration of Professional Social Care Workers

The establishment of a register of professional social care workers overlaps the efforts the complainant has been making to have this matter resolved since 2020.  CORU, the Health and Social Care Professionals Council, was established under the Health and Social Care Professionals Act 2005.  CORU’s objective is to promote high standards of professional conduct, education, training and competence through the statutory registration of health and social care professionals.  CORU is in the process of establishing registration boards for all the healthcare professions and, in March 2015, the Health and Social Care Workers Registration Board was established.  As part of the process of establishing a register of qualified social care workers, CORU has put in place a pathway to ensure that all social care workers are suitably qualified for the jobs they hold.   

The guidance on CORU’s website shows that current social care workers with two or more years of service may apply for registration through what is referred to as the “grandparenting route” which comprises four options:  

1.       Hold an approved qualification, or,

2.       Hold a qualification as set out in Schedule 3 of the 2005 Act or a “sufficiently relevant” qualification, or, 

3.       Have an employer’s opinion of competency, or

4.       Undertake an assessment of professional competency.

At the hearing, Mr Comerford explained that Covid-19 delayed the work of registration and CORU has now determined that social care workers have from November 30th 2023 until November 30th 2025 to complete the grandparenting process.  After November 2025, the HSE and HSE-funded organisations will not be permitted to employ unqualified social care workers. 

In April 2021, in a response to the complainant from the HR officer at the time, she was informed that, when the registration process opens, if she was registered with CORU, he “would be more than happy” to review her salary scale at that time.  This was repeated on December 4th 2023 by the current HR officer, Mr Ciarán O’Hare, who attended the hearing.  In his email on that date, Mr O’Hare wrote,

“I acknowledge your concerns which you have outlined but we are unable to make these changes currently.  We wish to confirm that if you register with CORU, you will be moved to the requested pay scale on receipt of registration.”

To remain in her job, the complainant must register with CORU.  Based on her qualifications and her 23 years of service to SJOG, there will be no problem with her registration and it appears that she will be moved to the 3/80 scale from the date of registration, which will be no later than November 30th 2025. 

Discrimination on the Race Ground

An email included in Mr Gorry’s submission for the hearing is from the complainant to the HR manager, Mr Ciarán O’Hare and is dated November 28th 2023.  In her email, the complainant explained to Mr O’Hare that, in 2019, she discovered a new detail on her payslip with the letters “Unqu” after her job title.  She said that she learned that this referred to an unqualified social care worker grade.  She also discovered that the LSI at point 12 had not been applied to her salary.

The complainant claims that, compared to her colleague, Ms Marlena Staniszewska, she is being treated less favourably on the ground of race.  Ms Staniszewska is Caucasian and the complainant is not.  Ms Staniszewska was interviewed for her job in 2006 at the same time as the complainant and they were both employed as social care workers.  Ms Staniszewska is from Poland and she graduated there with a Bachelor’s Degree in Social Science and a Master’s Degree in Pedagogy of People with Intellectual Disabilities. 

In 2019, when Ms Staniszewska discovered that she was on the 3/81 unqualified pay scale and that she hadn’t received the LSI at point 12 of the 3/80 scale, she raised a query with the HR department.  She said that the matter was rectified in a few days.  She was placed on the 3/80 qualified pay scale and she received back pay with effect from October 20th 2017.

Discrimination on the Gender Ground

The complainant named a colleague, Mr Edward Traynor, as a comparator who, like her, has a level 8 Bachelor’s Degree in Social Science from UCD.  Mr Traynor joined SJOG in 2011 but he applied for a job in the Dublin South East Service (where the complainant works) in 2013.  In her book of documents for the hearing, the complainant included a copy of the job description for the position of social care worker issued to Mr Traynor when he applied to transfer to the new role in 2013.  The pay scale for the job of “social care worker” is shown as “3/81/3/81N.”  In a statement he provided to the complainant for inclusion in her submission at the hearing, Mr Traynor said that, when he was being recruited, he negotiated his entry point on the 3/80 scale, also known as the “with qualification” scale and he received the 12th point LSI when it was due.  Payslips for both employees were submitted in evidence and show that the complainant is on the 3/81 scale at point 11 and Mr Traynor is on the 3/80 scale at point 12.

Evidence of the Complainant, Ms Julie Kelly

The complainant said that when she applied for the role in March 2006, two vacancies were available.  Ms Staniszewska got one job, and she was appointed to the other.  The complainant said that the positions offered were “with qualification” jobs, but they were both placed on the 3/81 scale, which, apart from the 12th point LSI, is the same as the 3/80 scale.

The complainant had been in the organisation since 2002 and she understood that she was interviewed for the permanent job because she had completed her Degree in Social Science.  At the time she was recruited, she said that she was one of a few employees who were regarded as qualified, in what was becoming a newly professionalised setting.  Employees with no qualifications were encouraged to undertake a FETAC[2] level 5 certificate course and were offered financial support to do so.  The complainant wasn’t asked to do a FETAC course.

In 2019, the complainant said that she and Ms Staniszewska discovered that they hadn’t been paid the LSI.  Ms Staniszewska gave evidence at the hearing and said that, in 2019, she sent an email to the HR department and she asked to be placed on the 3/80 scale.  She said that her request was granted and she received back pay from October 2017, when she was entitled to receive the LSI.

The issue of concern to the complainant is the failure of the respondent to recognise her qualifications from day one, and to treat her less favourably compared to two of her colleagues.  Apart from the financial loss of around €1,300 every year since March 2018, she said that the difference in treatment has had a profound emotional impact on her and has affected her confidence and self-esteem.  She has been trying to get an answer to this problem since 2020 and the response of management has resulted in her feeling disrespected and belittled.  She is committed to her job and to the people she works with and she didn’t want to come to the WRC.  She feels however, that she has to address how she has been treated and to advocate for a society in which her children will be treated as equal to others.

Points Raised at the Hearing

When the complainant joined SJOG in 2002, a practice was emerging to ask social care workers to complete a FETAC level 5 qualification in social care.  The complainant was never asked to do this training, which leads her to conclude that her Degree in Social Science exceeded what was required.   

By 2013, when the complainant’s colleague, Mr Traynor, was transferring to a role as a social care worker in the South East Services, the essential qualifications for the job had become more formalised and were set out in a document issued by the HSE on May 2nd 2012 which was included in the paperwork provided at the hearing.  In the person specification for the role, which was also provided, SJOG’s HR department stated as follows:

“Under the Health and Social Care Professionals Act 2005, all applicants must hold a minimum of a Level 7 qualification awarded by HETAC or foreign equivalent in one of the following areas:

§  HETAC Level 7 in Social Studies

§  HETAC Level 7 in Social Care

§  HETAC Level 7 in Applied Social Studies – Social Care

§  HETAC Level 7 in Applied Social Studies (Disability) - Open

Training College continuous learning.

In certain circumstances, candidates that hold HETAC Level 7 qualifications in related areas such as Psychology or Social Work may be considered for application, however, in such instances and pending the final report of the Joint Committee established to agree approved courses, discretion lies with St John of God Carmona Services.”  (The italics are in the original document).

When the complainant commenced in her permanent role in 2006, these courses did not exist and, therefore, a HETAC level 7 degree could not have been a criterion for assimilation onto the 3/80 qualified scale.  She was not required to do a FETAC level 5 course, and her case therefore is, that, in the absence of any formal qualification requirement, her honours degree was sufficient for her to be employed as a qualified social care worker.

The complainant has worked for the respondent for more than 20 years supporting people with the highest level of challenging behaviours.  When her colleagues who had not completed the relevant HETAC programmes were working towards registration with CORU, the complainant said that she and Ms Staniszewska sat with them and helped them with their assignments.  No one in management indicated that she also needed to undergo this process.

Mr Gorry referred to the complainant’s request to the HR officer, Mr O’Hare, in March 2024, for a record from her file or the respondent’s files, that demonstrate that her bachelor’s degree was not accepted when she was recruited for the position of social care worker in 2006.  Mr O’Hare wrote to the complainant to inform her that this data could not be located.  Mr Gorry submitted that the complainant’s level 8 degree was accepted as a suitable qualification for the position. 

Concluding the case for the complainant, Mr Gorry said that the respondent could have exercised discretion in relation to the complainant’s qualifications and she could have been moved to the 3/80 pay scale.  By not treating her like her two named colleagues, Mr Gorry submitted that she has been discriminated against on the ground of race and gender.  Ms Staniszewska was permitted to move to the 3/80 qualified pay scale and was reimbursed for the shortfall in her wages from the date that the LSI became due.  Mr Traynor had an opportunity to negotiate the entry point at which he returned to the role of social care worker in 2014.  Mr Gorry said that the decision of the respondent not to treat the complainant equally with a colleague who is Caucasian and a colleague who is a man is irrational and perverse.

Mr Gorry submitted that the complainant has not only suffered a financial loss, but also stress and hurt caused by a sense of being treated differently compared to her colleagues.  He asked me to find in favour of the complainant and to make an award of redress that takes account of the length of time she has spent trying to resolve the problem, the financial loss, the emotional impact and the sense of unfairness she experienced.  He also asked me to take account of the objective of deterring other employers from acts of discrimination.

On behalf of the respondent, Mr Comerford provided a comprehensive background to the events that led the parties to the WRC on February 24th 2025.  He referred to an email dated April 14th 2021 from the respondent’s former HR officer, Mr Ronan Phelan, in response to the complainant’s query about her pay scale.  In his email, Mr Phelan referred to a paragraph in the complainant’s contract of employment which stated,

“You may be required to pursue a further 3rd level qualification as determined and in alignment with the recommendations of the Health Service Employers Agency and Trade Unions.”

Mr Phelan went on to say that this sentence implies that the complainant’s qualifications were reviewed when she was recruited and were considered not to meet the criteria for inclusion in the 3/80 pay scale for qualified social workers.  In his email, Mr Phelan said that he compared the complainant’s degree qualification against the HSE Social Care Workers Eligibility Criteria from 2012 and a social science degree is not specifically mentioned and does not meet the criteria for inclusion on the qualified scale.  Mr Phelan concluded his email saying that he would be happy to review the complainant’s salary scale if she became registered with CORU.

In 2023 and 2024, the complainant raised the issue with the current HR officer, Mr Ciarán O’Hare.  Mr O’Hare advised her that her social science degree did not meet the criteria for a qualified social care worker “as per the CORU registration process.”  Mr O’Hare also referred to the possibility that the CORU registration process could be the vehicle for allowing the complainant to move to the qualified scale.

Mr Comerford provided a list of bachelors’ degrees from third level colleges that are approved by CORU to attest to the standard of education required for social care workers.  The complainant’s degree in social science from UCD is not in the list of 46 degrees, most of which are awarded by institutes of technology, former institutes of technology and the new technological universities.

As an alternative to this schedule of qualifications, Mr Comerford submitted the list of the qualifications relevant to social care workers in Schedule 3 of the Health and Social Care Professionals Act 2005.  This list includes HETAC qualifications in social care and childcare and qualifications from the National Social Work Qualifications Board and the equivalent in the UK.

Response to the Comparators Presented by the Complainant

In response to the claim of discrimination on the race ground, Mr Comerford said that Ms Staniszewska’s pay scale was reviewed in 2019 and she was moved to the qualified social care worker pay scale because she holds a primary degree and a post-graduate degree from another country.  Ms Staniszewska’s post-graduate qualification is in Pedagogy of People with Intellectual Disabilities.  Mr Comerford said that “it was incumbent upon the respondent to look beyond the very prescriptive list of approved Irish courses, to ensure that there was no inference of discrimination.”  The respondent’s view is that Ms Staniszewska’s qualifications are in excess of what is required by CORU and that an exception was justified.  The complainant has a post-graduate qualification in business studies and it is the respondent’s position that Ms Staniszewska is not “a true comparator” for the purpose of this complaint.

Considering the complainant’s second comparator, and her claim of discrimination on the gender ground, the respondent’s records show that Mr Traynor commenced working in a separate SJOG service, Menni Services, in November 2011 and, at the time, he negotiated to be placed on the 3/80 “with qualification” pay scale.  In 2014, when he transferred to the Dublin South East Services, where he worked alongside the complainant, Mr Comerford said that “the HR team felt compelled to honour his pre-existing T&Cs.”  Mr Traynor did not start off working with the complainant on a different pay scale.  Mr Comerford said that Mr Traynor’s terms are “an anomaly rather than the norm.”

In support of his position that Mr Traynor is not a valid comparator, Mr Comerford referred to the decision of my colleague adjudicator, David Murphy, in Jason Stack v Prodieco[3].  Mr Stack claimed that he was discriminated against on the age ground when he didn’t get a pay increase awarded to a colleague six years his junior.  His complaint did not succeed.  Mr Comerford submitted that the complainant’s case is similar, and that the fact that Mr Traynor is on the qualified pay scale is as a result of pre-employment negotiation and is not related to the complainant’s gender or race.

In his submission, Mr Comerford included a table with details of 33 social care workers currently employed in the Dublin South East Services.  All 33 joined the organisation as unqualified social care workers on the 3/81 pay scale.  Of this group, six employees, including Ms Staniszewska, have been moved to the 3/80 qualified scale.  Mr Comerford highlighted two female Caucasian employees who joined the service in 2008 and who, like the complainant, have Bachelor of Social Science degrees.  Both employees remain on the 3/81 unqualified pay scale.  Mr Comerford argued that this demonstrates that the complainant has not been treated less favourably on the basis of her gender or race.

Concluding his submission, Mr Comerford referred to the important decision of the Labour Court in Southern Health Board v Mitchell[4] where it was held that,

“The first requirement 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 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.”

In Graham Anthony & Company Limited v Margetts[5], the Labour Court expanded on the potential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established:

“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.”

Mr Comerford referred to the decision of the Labour Court in Melbury Developments Limited v Arturs Valpeters[6], in which the Court expanded on what is required to establish the initial proof that discrimination has occurred:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The HR officer, Mr O’Hare, acknowledged the complainant’s work in the organisation and her unblemished record.  He said that there is no intention to belittle her and that her queries have been considered.  Mr Comerford said that the complainant’s professionalism is acknowledged, but he submitted that she has failed to discharge the necessary standard of the burden of proof established in these important Labour Court decisions. 

The Legal Framework

The issue for consideration here is discrimination on the grounds of gender and race, protected categories listed at s. 6(2)(a) and (h) respectively, of the Employment Equality Act 1998 – 2015.  It is the complainant’s case that, as a woman and as a non-Caucasian, the respondent discriminated against her by not recognising her Degree in Social Science and her years of experience as a social care worker, as relevant for her to be on the qualified pay scale and eligible for the 12th point LSI. 

The Burden of Proof

For the respondent, Mr Comerford pointed to s.85A of the Act which transposes into Irish law Article 19(1) of EU Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.  Sub-section 1 of s.85A states:

“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 effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Mr Comerford cited the decision of the Labour Court in Southern Health Board v Mitchell wherethis “evidential burden” was described.

My first task therefore, is to consider if the complainant has shown that, based on the primary facts, she has been discriminated against by the respondent due to their decision not to consider her as a qualified social care worker based on her Degree in Social Science and her experience in the role of a social care worker since 2002.

The Primary Facts

The complainant worked as a relief social care worker from 2002.  In 2006, by which time she had completed her Degree in Social Science, a vacancy was advertised for a permanent role and she applied for the position.  The job advertisement did not identify the role as “qualified” or “unqualified” and the contract issued to the complainant on March 24th 2006 refers to the position simply as a “Social Care Worker.”  This title is repeated in the cover letter accompanying the contract.

Under the heading, “Salary Scale,” the contract states, “Salary Scale 3/81.”  There is no reference to this scale being applicable to a role as an unqualified social care worker.

The complainant’s evidence is that, when she was recruited to the permanent role in March 2006, her understanding is that she was appointed to the job because she had completed a level 8 Degree in Social Science.  She was unaware of the background to or the meaning of the “3/81” salary scale.  The respondent provided no evidence to show that the complainant was informed at the time she was recruited that she was appointed to a role as an unqualified social care worker.  Many employees in the role of social care worker at the time that the complainant was hired had no formal qualifications and they were encouraged by the respondent and supported financially to take FETAC level 5 training.  The complainant was never directed to take this training.  This leads me to conclude that the position of the respondent was that she was qualified for the job.

The complainant’s male colleague, Mr Edward Traynor, was recruited in 2011.  It appears that he was aware of the existence of two pay scales and he negotiated to be placed on the 3/80 “with qualification” scale.  In 2014, Mr Traynor transferred to a job in the same service area as the complainant.  At the time of his transfer, he was again appointed to the 3/80 scale.  Like the complainant, Mr Traynor is a UCD graduate in Social Science.  The decision of the respondent to hire him on a more advantageous pay scale is indicates that, at the time of his appointment, he was treated more favourably than the complainant.

In 2019, at the same time as the complainant, her Caucasian colleague, Ms Marlena Staniszewska, discovered that she was on the unqualified pay scale.  When Ms Staniszewska made a case that, based on her qualifications and experience, she should be classified as a qualified social care worker, the respondent agreed and she was reimbursed for the non-payment of the 12th point LSI from the date it was properly due.  Mr Comerford said that Ms Staniszewska’s post-graduate degree was “clearly in excess of what was sought by the Irish regulator” and, on this basis, the respondent’s case is that an exception was justified.

Considering the burden of proof established by the Labour Court in Southern Health Board v Mitchell, I am satisfied that the facts submitted by the complainant are sufficient to raise a presumption of discrimination.  The burden of proving that discrimination on the gender and race ground did not occur now shifts to the respondent.

Examination of the Respondent’s Case that the Complainant was not Discriminated Against

It is the respondent’s case that Mr Traynor is not a “true comparator” because he negotiated to be placed on the qualified scale when he joined SJOG in 2011.  Mr Comerford also presented examples of two females who hold a Bachelor’s Degree in Social Science who remain on the unqualified scale.

From the evidence of the complainant, it is apparent that, when she was recruited in 2006, she wasn’t informed that her salary was based on the 3/81 unqualified pay scale.  It seems to me that there is an element of deception here, because, when she took up the permanent position, she was required to submit a copy of her degree certificate and she was certain that she was hired because she was qualified.

I note the reference in Mr Comerford’s submission to the email from the former HR officer, Mr Phelan, on April 14th 2021.  Mr Phelan referred to the statement in the complainant’s contract that she “may be required to pursue a further 3rd level qualification as determined and in alignment with the recommendations of the Health Service Employers Agency and Trade Unions.”  Mr Phelan suggested that this implies that the complainant’s qualifications “did not meet the criteria” for the 3/80 pay scale and that she may have been required to undertake further study.

The documents submitted in evidence by the complainant show that she clarified this reference to further study in November 2023 when she met the incoming HR officer, Mr O’Hare.  The statement in her contract referred to a course funded by SJOG for employees working with people with challenging behaviours.  Completion of the course was unrelated to the 3/80 or 3/81 pay scale or the possibility of moving from one pay scale to the other. 

In 2020, when she enquired with the HR department about her classification on the unqualified scale, the complainant was, in effect, seeking to negotiate a move to the qualified scale.  The fact that, unlike Mr Traynor, her efforts were unsuccessful, indicates that she was treated less favourably.  When he transferred to the South East Services in 2014, Mr Traynor was “unqualified.”  In this regard, he was in the same position as the complainant.  If, as Mr Comerford argues, Mr Traynor was “an anomaly,” there was room in the organisation for another anomaly and I find that it was discriminatory to treat the complainant less favourably. 

In support of his case that the complainant was not discriminated against on the gender ground, Mr Comerford referred to the adjudication officer’s decision in Stack v Prodieco.  Mr Stack’s younger colleague received a pay increase after he threatened to resign and Mr Stack claimed that the effect of this was to discriminate against him on the age ground.  His complaint failed.  Mr Comerford suggested that the disparity in the treatment of the complainant compared to Mr O’Hare is similar and was “a result of negotiation pre-employment.”  I do not accept that the situations are similar.  There was no suggestion that Mr Traynor threatened not to take up the job if he was placed on the unqualified scale, and, even if he did, this is not an argument for treating the complainant less favourably.  When he was recruited, Mr Traynor knew there were two pay scales, with the 3/80 scale being more beneficial.  The complainant was not aware and was not informed about the two scales.  As I have previously stated, the fact that this information was concealed from her was deceptive and the failure to rectify the situation resulted in her being treated less favourably compared to her male colleague.

Mr Comerford informed me that, of a cohort of 33 social care workers, apart from the complainant, two females with Social Science degrees remain on the unqualified scale.  I was not informed if these two employees applied to move to the qualified scale and it seems to me that they may also have an argument that they have been discriminated against.  I note from the information presented to me that, of the 33 social care workers, six who were recruited on the 3/81 scale moved to the qualified 3/80 scale after they joined the organisation.  This leads me to conclude that, for a variety of reasons which were not explained, some employees were treated differently and more favourably compared to the complainant. 

Moving to the complainant’s claim that she was discriminated against on the ground of her race, I have considered the respondent’s position that, compared to Ms Staniszewska, the complainant is less qualified, because Ms Staniszewska has a post-graduate qualification in intellectual disabilities.  I note Mr Comerford’s submission that, when Ms Staniszewska requested to be moved to the qualified pay scale, “it was incumbent upon the Respondent to look beyond the very prescriptive list of approved Irish courses, to ensure there was no inference of discrimination.”  Ms Staniszewska graduated from a university in Poland and, while I do not wish to cast any doubt on her qualifications, the respondent has no insight into the standard that applied to her course, and no comparative information to show that her master’s degree is equivalent to a similar degree in Ireland.

The CORU registration process provides that a current social care worker may hold a minimum of a level 7 qualification awarded by HETAC, the majority of which are Bachelor of Arts degrees in social care or applied social care.  Under the Schedule 3 list of qualifications for existing practitioners, the minimum requirement is a national diploma in childcare, social care or social studies.  Alternatively, an existing worker may hold a “a sufficiently relevant” qualification which may be determined on a case-by-case basis by the Social Care Workers Registration Board.  The complainant has a level 8 Honours Degree in Social Science, which is a higher-level qualification than the minimum required by CORU, the regulatory body. 

Most reasonable people with knowledge of the profession would conclude that an employee with a Social Science Degree and more than 20 years of dedicated and unblemished service comes within the parameters of having a “sufficiently relevant” qualification.  It was open to the respondent to approach the complainant’s case with the same level of flexibility they applied to Ms Staniszewska and, it is my view that, by seeking to ensure that there was no inference of discrimination in her case, the complainant, who is of a different race, was treated less favourably.

Conclusion

I have reviewed the guidelines for applying for registration as a social care worker before the expiry of the registration period on November 30th 2025.  At section 2 of these guidelines, I note that an employee who does not have an approved HETAC level 7 qualification, a Schedule 3 qualification or “another sufficiently relevant qualification” may apply for registration through the “grandfathering route” by providing an “Employer’s Opinion of Competency.”  It is apparent therefore that, since the opening of the registration period in November 2023 (and perhaps for some time previously), the respondent has had discretion regarding the determination of the qualifications of experienced social care workers in their employment.  This discretion was exercised in the case of two of the complainant’s colleagues.  It is with some regret that I find that the only explanation for not exercising the same discretion with regard to the complainant is related to the fact that she is not Caucasian and not a man.

CA-00065165-001:  Discrimination on the Race Ground

CA-00065165-002:  Discrimination on the Gender Ground

I have concluded that the complainant was discriminated against on the grounds of race and gender and I decide therefore, that these complaints are well founded.

In accordance with my powers of redress under s.82 of the Employment Equality Acts, I direct the respondent to pay the complainant €10,000, an estimate of the value of the 3/80 scale 12th point long service increment since the date on which it was due in March 2018.  As compensation for the effect of discrimination, I order the respondent to pay the complainant €34,000 equivalent to approximately 26 weeks’ gross earnings.  The total amount awarded is therefore, €44,000.  As this compensation is for the infringement of a statutory right, it is not subject to deductions for PAYE, PRSI or USC.

Discrimination, gender, race, qualifications