Complainant

Respondent

Parties

Rentu  Mathew

Bons Secours Health System Clg

Representatives

Noelle Hamilton Irish Nurses and Midwives Organisation

Sophie Crosbie IBEC

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-00074022-001

02/08/2025

The Complainant was appointed as Clinical Nurse Manager 2 (CNM2) on 8 July 2024.  She was offered this role after being unsuccessful in an application for a Clinical Nurse Specialist (CNS) role.  She had a short induction and worked alongside a CNM1 who was covering the ward until she was appointed. 

The Complainant underwent two probation competency assessments which were positive.  She took some preplanned annual leave from 15 October 2024 until 8 November 2024. Her final probation meeting was held earlier than scheduled on 20 December 2024 and she was told that she had failed her probation.  No prior warnings or support were offered.  The Complainant submits that the Respondent failed her probation on the basis that she was from India as she believed that she had met all the required competency assessments.  It is the Complainant’s submission that this was racial discrimination.  She resigned from her position on 12 May 2025. She submitted her complaint to the WRC on 2 August 2025. 

The Respondent rejects any allegation of discrimination by the Complainant.  It is the Respondent’s submission that there were a number of serious issues involving the Complainant and these were the reasons for determining that she did not successfully pass her probation.  She was also afforded an appeal process and offered an alternative role.  The Complainant was on sick leave and then submitted a letter of resignation with immediate effect on 12 May 2025.

 Evidence – Ms Rentu Matthew:

Ms Matthew gave evidence on oath.  She explained that she applied for a CNS role with the Respondent and when she was informed that she was unsuccessful she was then offered a CNM2 role.  She accepted this and commenced on 8 July 2024.  She was advised that her assigned ward was in disarray for a long time as there was no CNM2 in place.  She was to have the assistance of CNM 1 who was acting CNM2, but the Complainant was regularly redeployed due to staff shortages.  She was reassured by the Site Manager that she would be supported but she received no support during her initial two weeks in the ward.

The Complainant was asked to respond to the Respondent’s submission that she was treated more favourably when she commenced employment.  She explained that her previous employer had provided funding for a course of study and she was required to remain in post for a period of two years after completion or repay the money if she decided to leave.  The Respondent paid the €6,875 due to her previous employer and also paid her a recruitment bonus which consisted of €2,500 on commencement and a further €2,500 after six months.

The Complainant gave evidence that she was informed by the CNM 1 that the ward was not doing well in the audit metrics.  Also, the staff roster was not done four weeks in advance and she had to respond to an MDA issue.  The Complainant outlined that during her first month she was on and off the ward on many occasions as there was less need for the ward.  She was redeployed to other wards and was asked to shadow another CNM2.  In August 2024 she was redeployed to the Endoscopy Unit and she believes that this was because she was Indian.  She had no previous training in Endoscopy.

The Complainant acknowledged that she had her first competency meeting on 22 August 2024.  This was conducted by Ms Emer Burton, Assistant Director of Nursing.  She was reassured that she was doing well and had very positive feedback.  The Complainant confirmed that the copy of this assessment was provided in her written submission.  The Complainant also acknowledged that the learning outcomes formed part of this document.

The Complainant also gave evidence that there was no Ward Clerk in post and this resulted in her having to complete additional administrative tasks.    She accepted that she was getting temporary Ward Clerk support for two hours each day but this was not sufficient.

The Complainant explained that when she was redeployed to the Endoscopy Unit she was working as a staff nurse.  She also gave evidence that she was told that this was a decision made by the Director of Nursing.

It was the Complainant’s evidence that she was not shown what to do on the ward and there was no training in relation to what the various benchmarks were.  She was reassessed by the Assistant Director of Nursing who acknowledged that she was settling in.  She also had another competency assessment meeting on 9 September 2024 and was again reassured that she was settling in.  A further meeting on 14 October 2024 confirmed that there were no issues.

The Complainant was asked about an issue in relation to a patient absconding on 20 August 2024.  She outlined that this patient was on “Special Care” (1:1 supervision) and left the ward.  The Complainant noted that this matter was never raised with her during any of her competency meetings with the Assistant Director of Nursing.  The Complainant also noted that the references to communication gaps were in fact a reference to communication gaps among staff and not her.

The Complainant gave evidence that she was aware of other colleagues who were on probation. She was aware of an Irish nurse who was on probation and who was supported throughout her probation whereas she was not.  She would meet other CNM2s while on her breaks.  She was praised for organising the staff roster four weeks in advance.

The Complainant was asked to respond to the allegation that she finished work at lunch time on 28th November.  She explained that she spoke with the Assistant Director of Nursing the previous week about rearranging her hours as she was booked on a course on the Friday of that week.  She worked 37.5 hours that week and did not take any leave.

In relation to an incident on 27 November 2024 the Complainant gave evidence that a patient was admitted with a terminal illness.  She spoke with the patient and got on well.  There were no other issues mentioned or escalated. The same occurred on the Thursday and she was attending training on the Friday.  The Complainant stated that she was told on the following Monday that the patient’s condition had deteriorated and none of the vital signs were taken.  The Complainant stated that she spoke to the nurse who was responsible. He explained that he took the relevant measurements but did not enter these on the chart.  He recorded the notes on a piece of paper with the intention of transferring these to the chart at a later stage.  The Complainant confirmed that the Assistant Director of Nursing undertook a formal investigation.  The Complainant stated that this was the first occasion that she became aware of the unacceptable note taking practice and she denied that she acknowledged to the Assistant Director of Nursing that she was previously aware of the practice.

The Complainant was asked about another incident which the Respondent highlighted.  This was on 12th December.  A patient was discharged on 11th December and a family member phoned the ward to state that the person was unwell and he was concerned.  A subsequent phone call from the same relative confirmed that there was no follow up.  The Complainant noted that she spoke to the nurse concerned and who stated that she was busy.  The relevant call log was not completed by the nurse.

There was a further issue put to the Complainant in relation to a swabbing issue on 16th December.  The Complainant stated that she saw an email from the Director of Nursing and she was asked to follow up on this.  The swab was done by the CNM 1 but the relevant slip was not filled in correctly and this led to the issue.  The Complainant noted that she was held accountable for this and the only reason for this happening was “because I was an Indian person”.   The Complainant stated that the reason the matter was not escalated was because the laboratory did not escalate the concern to the site manager or to the CNM2.

The Complainant gave evidence that she was asked to attend a meeting on 20th December.  This was attended by the Director of Nursing and the Assistant Director of Nursing.  She stated that she expected the Director of Nursing to be in attendance as the meeting was scheduled in her office.  Prior to this meeting the Complainant was not aware of any issues in relation to her practice.  At this meeting the Complainant was told that she lacked awareness about a patient with suicidal ideation and she had poor rapport with this patient.   This was put forward as a reason why she would fail her probation.  The Complainant clarified that the patient told the Discharge Co-ordinator about her suicidal ideation and not her.  The Discharge Co-ordinator is an Irish person.

The Complainant gave evidence that at the meeting on 20th December she was informed that she failed to pass her probation.  Three reasons were given:

1.       The rapport issue with the patient who had suicidal ideation

2.       Failure to escalate concerns about a patient whose condition deteriorated

3.       No improvement in the medication audit outcome.

The Complainant stated that she was told by the Director of Nursing that she could resign her post within one week or move to a staff nurse role in the Endoscopy Unit.  She was asked to confirm her decision within one week.  A copy of her probation review form dated 02 December 2024 was opened.  The meeting took place on 20 December 2024.  The Complainant stated that this is not a true reflection of the meeting and no documentation was discussed or shown at that meeting.  She stated that she disputes the nature of the document and its content.

It was the Complainant’s evidence that she was not offered any support or any additional training at this meeting.  She was also not given any opportunity to continue working as a CNM2.  She was told by the Director of Nursing that it was her mistake to employ her and she now wanted to rectify this.

The Complainant noted that this happened at Christmas time and it became very stressful as she had two young children.  She stated what should have been a very happy time of the year was not as a result of this meeting.  The Complainant stated that she was on certified stress leave from 23rd December.  She was asked by HR to submit a grievance in relation to the Director of Nursing and the inappropriate assessment of her clinical competency.  The Complainant stated that she got a prompt reply stating that there were other issues with her performance and she was reminded of the money the Respondent had spent on her.  The Complainant stated that she was shocked when she received this letter.  There were issues outlined which were not mentioned at the meeting on 20th December and of the seven matters outlined only two were mentioned at the meeting.

The Complainant was off work until 6 January 2025 and she then attended a meeting with the Assistant Director of Nursing and HR.   Her INMO representative attended the meeting.  Following this she was sent home with pay until 15 January and she stated that this made her feel uncomfortable.

The Complainant described a statement in the Respondent’s submission as a “false statement” when it stated that she confirmed that it was she who received the post discharge call from the patient and that she requested another staff member to fill in the form and follow up with the patient.  The Complainant responded to the notes of her appeal and described the statement that she had no knowledge of the acuity level on the ward as another false statement.

It is the Complainant’s position that she was further discriminated against in the appeal process. She confirmed that she escalated this in a comprehensive letter to the Respondent’s CEO on 14 January 2025.

The Complainant was asked what her response was to the Respondent’s submission that “no less favourable treatment occurred” in relation to her.  The Complainant stated that she believed she was subjected to unfair treatment by the Respondent and this happened because she was from India.

Cross examination – the Complainant:

The Complainant was cross examined by Ms Crosbie on behalf of the Respondent.  She acknowledged that she applied for a CNS role and was unsuccessful.  She agreed that she was offered and accepted the CNM2 role.  She also agreed that the Respondent paid her former employer for her training and that she received the sign on bonus of €2,500.  The Complainant agreed that the Respondent did not seek the return of any of these monies. The Complainant also agreed that she was granted annual leave and that her sick leave was paid.  It was put to the Complainant that on 6 January 2025 she was offered a staff nurse role and she continued to be paid as a CNM2 until her resignation.

It was put to the Complainant that in relation to redeployment as a staff nurse it is also a fact that the Director of Nursing and Assistant Director of Nursing can be similarly redeployed if patient needs dictate this.  The Complainant stated that she was not aware of this.  It was put to the Complainant that the evidence from the Director of Nursing and Assistant Director of Nursing is that they can be so redeployed. 

It was put to the Complainant that the staff on the ward were put on a Performance Improvement Plan (PIP) following the INEWS incident.  The Complainant stated that she was not aware of this. It was put to the Complainant that there was a total of three staff put on a PIP.  She explained that she had no awareness of this.  The Complainant agreed that she was part of the preliminary screening process and she agreed that the outcome was to put everyone on a PIP.  She agreed that was the case.

It was put to the Complainant that the root cause of the patient absconding was the fact that all staff on the ward went on their break at the same time.  The Complainant stated that she did not agree.  It was put to the Complainant that the allocation of breaks was her responsibility.  She agreed but noted that she was not on the ward the day the patient absconded and it was the CNM 1 who was running the ward that day.

It was put to the Complainant that the evidence from the Respondent’s witness will be that she did not seek approval to leave the ward early.  The Complainant stated that she met the Assistant Director of Nursing the week before.  She was scheduled to attend training on the Friday and the Assistant Director of Nursing put in the hours for her.  Her time off was approved and the roster system was edited by the Assistant Director of Nursing.  It was put to the Complainant that she left the ward at 12.59.  The Complainant confirmed that she left when the staff nurse returned and made sure that the ward was safe before she left.

The Complainant was asked about her understanding of what happened when a sick patient contacted the ward.  She stated that the staff nurse who received the call did not fill in the form and did not follow the matter up.  She agreed that when the staff nurse came to her the following day and told her about it, she informed her of the correct procedure.

It was put to the Complainant that when she left the ward on 28th there were 24 staff on sick leave.  The Complainant stated that she left when the ward was safe.  She was asked what her role was in relating to supervising and her responsibility for patient care.  She stated that she was required to provide direct patient care.  In addition to her CNM2 role she also had to undertake Ward Clerk duties and assist other staff nurses with their patient care.

It was put to the Complainant that in her grievance she felt that her probation might be extended.  She confirmed that she thought so due to the fact that she took holidays and the INEWS incident.  It was put to the Complainant that these two issues had nothing to do with discrimination.  She agreed but stated that other things had.

It was put to the Complainant that in her evidence she made a comparison with a staff nurse who was on a three-week PIP and she was also offered to have a probation extension and a PIP on 20 December.  She agreed.  A copy of the probation review form dated 02 December 2024 was opened at the hearing. The Complainant stated that this form was completed in her absence.  It was put to the Complainant that the letter she received from HR on 23 December 2024 which clarified that it would be normal to meet her in person but as it was Christmas time the letter was sent to respond to her letter.  She agreed but stated that her grievance was not discussed with her.

It was put to the Complainant that in her letter to the CEO dated 14 January 2025 all the points mentioned are related to her performance.  She disagreed and noted that there were a series of incidents since August 2024.  She stated that her allegations of discrimination were outlined in her previous grievance.

The Complainant was asked about the verbal warning she issued to the staff nurse in relation to the post discharge form incident.  She stated that she verbally spoke with the staff nurse in relation to this.

It was put to the Complainant that she stated that she did not want to report to the Director of Nursing or the Assistant Director of Nursing.  She agreed that was her position as she was not happy with the way she was treated by them.

Re-Direction – the Complainant:

Under re-direction a copy of the assessment of competence document was opened.  The Complainant explained that her understanding of the meetings she had in relation to her probation in August and October 2024 was that she was deemed clinically competent by the Assistant Director of Nursing.  The document is confirmation of that.

The Complainant was asked about the notes of the meeting of 15 January 2025.  She outlined that she responded to these with a lot of corrections.  She gave evidence that it is her position that these notes are not a true reflection of the meeting.

It was put to the Complainant that the Respondent says that she had prior knowledge of and was aware of the practice of note taking and then transcribing these to the patient’s charts.  She stated that she only became aware of this when she spoke to the staff nurse who accepted the practice.  She confirmed that she was not aware this was a practice which was happening on the ward.

In response to questions from the Adjudication Officer it was put to the Complainant that in order to ground a complaint of discrimination on the race ground she must first establish that she is covered by the protected ground and it is not disputed that she is from India.  The Complainant was asked to clarify the specific examples of where the alleged discrimination had occurred.  She stated as follows:

1.        A staff nurse who was Irish was given support when difficulties with her probation emerged.  The Complainant did not receive any such support

2.       When the ward closed on three occasions she was redeployed to other areas while others were not.  Those not redeployed were not from India

3.       The Audits – the ward was not doing well in the audits and there was no action plan to assist her.  Other wards were provided with help.  She was blamed for the poor audits although she was told that the ward was in a state of disarray before she started.  The only reason she was blamed was because she was from India

4.       The INEWS escalation issue.  Her lack of leadership and management was cited as the reason and the email from the night manager is a factor

5.       The Swab issue.  The delay in completing the form was attributed to her solely because she was from India.

6.       There was an incident in relation to QPulse when she highlighted staff shortages.  She observed behavioural changes in the Assistant Director of Nursing as a result of this.  The Assistant Director of Nursing specifically said the words, “How dare you” on 11 December 2024.  She also indicated that the Complainant may be backdating the report which she denied.  The Complainant believes that this is a discriminatory act due to the fact that she is from India. 

7.       The document provided by the Respondent in relation to the probation is made up with the intention of getting rid of her.  The only reason for this is because she is from India.

Closing Submission – Complainant:

Mr Fitzpatrick, INMO, made a closing submission on behalf of the Complainant. He noted that this was a discrimination case and the Complainant was treated less favourably on the ground of race.  This less favourable treatment was a dismissal and a demotion.  This was less favourable than that which applied to an Irish CNM2.  None of the CNM2s on other wards were disciplined as a result of poor outcomes arising from the Medication Safety Audits.  The outcomes were worse than those of the Complainant’s ward.  There was no adverse treatment for the Irish CNMs whereas the Complainant had a clear difference in her treatment and that treatment was because of her race.

The overturning of the decision to dismiss the Complainant is clear evidence that the Respondent recognised that something was wrong with the process.  It is clear that there was bias at play in the treatment she received.  She was treated differently to other CNM2s.

The treatment the Complainant received from her manager was also a factor and this was clear from the way she sat on the Complainant’s desk.  A further issue was the threat in relation to the fees paid to her.

The Complainant was put on some form of administrative leave without any policy or any description of what this leave was. 

The facts of this case show that the Complainant was discriminated against on the ground of race and she was treated less favourably.  It is clear that the discrimination is presumed to have taken place.

The Respondent has serious questions in relation to the reliability of some of their evidence.  What is clear is that there was a lack of fair procedures.  The Complainant’s grievance was not addressed and the result is that she was suspended after failing her probation without any certainty in relation to what HR process would be followed.

It was submitted on behalf of the Complainant that the WRC should find that the Respondent discriminated against the Complainant on the ground of race when it failed to act in a fair and equal manner by demoting and suspending the Complainant instead of supporting her at her final probation meeting.

Evidence – Ms Celine McConnell:

Ms Celine McConnell gave evidence on oath on behalf of the Respondent.  She gave evidence that she is the Director of Nursing and also the Chief Nursing Officer with the Respondent.  She first met the Complainant when she applied for a CNS role and was found not suitable.  She noted that the Complainant had potential and offered her the role of CNM2.  The Respondent is a “Level 2” hospital and there was a CNM 1 acting up in that role but she did not want the CNM2 role.  Ms McConnell felt that the Complainant would be suitable as she would have the support of the CNM 1 on the ward and the Respondent has a very good Nurse Practice Development Unit.

The CNM2 post was vacant for about 10 months and she met with the Complainant and explained the role and the nature of the ward.  She also gave her details about the audits and metrics and the work that was required to bring standards up.

Ms McConnell gave evidence that there are nurses employed from all nationalities.  The night manager is from India and over 50% of their managers are non-Irish.  Ms McConnell acknowledged that the Complainant mentioned that she would owe her previous employer for training if she accepted the post and she spoke with their finance people who agreed to pay this for the Complainant.  This was the first time she could recall doing this.  The Complainant also received an on-boarding fee and she also agreed that she would facilitate the Complainant’s annual leave request even though she had not accrued any entitlement.

Ms McConnell confirmed that the Complainant had a one-week induction and some training.  There was an introduction to the Respondent and the Nurse Practice Team.    About three weeks after commencing there was reduced activity on the ward and it was closed as it was the smallest ward on site.  The Complainant was given an opportunity to work alongside an experienced CNM2 for three days at that time.  On the second week the Complainant was given time to do administrative work and again work with a more experienced manager.  Ms McConnell accepted that the Complainant was redeployed to the Endoscopy Unit for two days.   The redeployment policy is a contractual obligation on employees and the decision to redeploy is made by the Assistant Director of Nursing and the Site Manager.  Ms McConnell confirmed that it is the practice to also deploy Irish nurses.  The redeployment for two days occurred when there were 24 staff on sick leave.  In these situations, the administrative work takes a back seat.

Ms McConnell explained that a Senior Staff Nurse is responsible for their own patients and a CNM2 is responsible for managing the ward.  The Complainant did not raise any issues with her and she noted that she is visible on the wards and would have checked in with her.  She did raise an issue in relation to difficulties with a staff nurse on probation and she advised the Complainant to speak with Nurse Practice Development for assistance.

Ms McConnell noted that her concerns in relation to the Complainant’s performance started when a patient absconded from the ward when they were on special 24/7 care.  She was informed that all staff went on a break.  This was a high risk for the patient and the organisation.  She asked for this matter to be investigated.

Ms McConnell stated that the next concern about the Complainant occurred when she became aware of the INEWS escalation incident.  This patient was admitted as being acutely unwell and their condition deteriorated over a number of days.  There is a clear escalation pathway in place and there was no monitoring done from Friday morning to Saturday night.  The policy was not adhered to and there were multiple drug errors and poor nursing documentation.  There were experienced nurses on this ward.   Ms McConnell gave evidence that a handover was received from the night manager who was concerned about this patient’s care.  She spoke with the Assistant Director of Nursing and HR.  Ms McConnell stated that she would have expected the CNM2 to be able to review the records and manage the ward.   This was a 16-bed ward with an average of 13 patients per day. Ms McConnell gave evidence in relation to the concept of “Rounding”.  This is proactive professional communication with patients in your care.  As a CNM2 you would speak with your patients in relation to their care and how they were getting on.  This is a purposeful communication with patients and designed to understand their care needs and concerns. This allows a CNM2 to be all over the documentation, follow up on issues and ensure that all patients are safe and getting the highest quality of care.

Ms McConnell was asked about the Complainant’s view that she received no help.  She refuted that assertion and noted that she had the support of a CNM1, Nurse Practice Development, site manager and her own open-door policy.  She also had access to her line manager, the Assistant Directors of Nursing one of whom worked days and the other worked nights.  Ms McConnell confirmed that she had no doubt the Complainant was aware of these supports.  She explained these to her and also outlined the challenges to her.

In relation to other incidents with the Complainant she noted that she left early without approval and then raised concerns about staffing levels.  She was aware of the deficits on the ward.

Ms McConnell explained that the concept of a “Safety Huddle”, that it involves the multidisciplinary team, site manager and representatives from all disciplines and CNM2 or a representative from all wards.  The purpose is to determine what patients need to be escalated to the medical teams if their condition deteriorates.  This is a very effective process and ensures that issues are dealt with promptly.

Ms McConnell noted that the medication audit was not great and had to be repeated. As a result of this a Quality Improvement Plan (QIP) was required and this is an action plan to address the issues which were highlighted in the audit.    There were three other wards also affected and the CNM2 on one of these wards is Irish and was also the recipient of a QIP.                     

Ms McConnell gave evidence in relation to the swabbing issue.  This is a screening process and a patient remains in isolation until an all clear is received from the Laboratory.  She would have expected the CNM2 to follow up when there were delays and in this case the laboratory was trying to contact the ward but without any success.

The issue in relation to the discharged patient arose when the patient’s relative contacted a nurse on the ward about concerns post discharge.  The nurse escalated this to the CNM2 who advised her to complete a form.  The CNM2 did not follow up on this and the matter came to light again when the relative had to contact the night staff about their concerns.  This was brought to the Complainant’s attention and she agreed that she did not follow up with the nurse.        

Ms McConnell gave evidence that when these incidents were occurring, she got concerned about the Complainant’s performance.  She got feedback from the site managers. She was concerned about the poor practices on the ward and the INEWS incident was very serious.

Ms McConnell stated that at the five-month probation meeting she felt that the role was a step too far for the Complainant.  She believed that she would be more of a Senior Staff Nurse rather than a CNM2.  She confirmed that the meeting was held in her office and the Complainant stated that she felt that she was getting on great.  Ms McConnell explained her concerns to the Complainant and told her that she would not pass her probation.  She outlined the available options, which were to resign within one week or be reassigned as a Senior Staff Nurse in Endoscopy.  Overall, she felt that the Complainant would need to spend some time as a CNM 1 before progressing to CNM2.  MS McConnell denied that she was in any way intimidatory towards the Complainant at this meeting.  She stated that it is her nature to be empathetic.  She also refuted the assertion that the Complainant was not given any support.  Ms McConnell also confirmed that the Complainant’s issues in establishing rapport with patients had nothing to do with her level of English. 

Ms McConnell stated that three nurses, including the Complainant, have failed their probation.  The difference with the Complainant was that she was offered an alternative role, Senior Staff Nurse.  Ms McConnell refuted the assertion that the Complainant was treated less favourably and she believes that she was in fact treated more favourably.   The predominant reason why she failed her probation was that she was performing at the level of a Senior Staff Nurse and not as a CNM2.  There were too many incidents on this ward.  Ms McConnell stated that she wanted to say that the Complainant was a nice person and always very pleasant.

Cross Examination – Ms Celine McConnell:

Ms McConnell was cross examined by Ms Brehony on behalf of the Complainant.  She was asked about the audits and expectations.  She stated that issues arose across all wards and these had to be dealt with.  She was asked if any CNM2 was demoted as a result of these audits and she accepted that none were.  Ms McConnell also agreed that the Complainant had highlighted the fact that she had holidays already booked prior to commencing and this was noted during on boarding.

It was put to Ms McConnell that she gave evidence that the patient absconding was a serious issue for the patient and the organisation but she made no reference to this at her meeting with the Complainant on 20 December 2024.  She accepted that there was no specific reference to this.  She was asked what occurred after she asked the Assistant Director of Nursing to investigate this.  She outlined that staff were sent on their break and the special was taken away from the patient.  This incident was recorded on the QPulse system.

It was put to Ms McConnell that she said that there was poor nursing documentation on the ward but this was the standard for years and she was asked why the Complainant was held to account for this.  She explained that the CNM2 is responsible for the ward and the nursing documentation referred to the incidents that occurred during the Complainant’s time on that ward.

Ms McConnell confirmed the INEWS incident and noted that no measurements were taken between 6.00am Friday until 11.00pm on the Saturday.  She could not recall who was in charge but explained that a PIP was put in place.  It was put to Ms McConnell that she gave evidence that the Complainant was clinically strong but lacked leadership and communication.   She stated that the incidents noted all showed a lack of leadership on the part of the Complainant and in particular the call from the patient’s relative, the other patient whose condition deteriorated and failure to review charts.

Ms McConnell was asked about the swabbing incident on 11 December 2024 and if there was any follow up with the CNM1.  She stated that it was the responsibility of the CNM2 to deal with the CNM1 in relation to that matter.

Ms McConnell was asked if she accepted that the Complainant was not aware that the patient’s condition was deteriorating.  She stated that she would not accept that as the Complainant spoke to the patient and did not report anything.      

Re-direction – Ms McConnell:

Under redirection Ms McConnell confirmed that no other CNM2 was on probation at that time.    There was a total of three staff placed on a PIP including the Complainant.

She also confirmed that the Complainant was given the option to transfer to a Senior Staff Nurse role.

Evidence – Ms Emer Burton:

Ms Emer Burton gave evidence on oath on behalf of the Respondent.  She gave evidence in relation to her career before commencing employment with the Respondent as Assistant Director of Nursing on 6 August 2024.  She confirmed that she would have met the Complainant during her first week.

Ms Burton confirmed that she completed the Complainant’s clinical competency assessment on 19 August 2024.  She did raise the issue about the patient absconding with the Complainant at that meeting.   She also discussed how she was getting on and what mandatory training she had completed.  The absconding incident was discussed and the Complainant agreed that there should have been a 1:1 special in place and she was sorry for what happened.  There was no dispute in relation to the cause of the incident which was that staff went on their break and the special was taken off the patient.

Ms Burton gave evidence that the probation competency assessment is done via a Workday App and she got assistance from the Complainant in relation to this.   The second competency assessment was on 14 October 2024 and she confirmed that there were no issues raised or cause for concern at that meeting. 

Ms Burton spoke about the audits and confirmed that these included a medication audit.  Her expectation is that the result would be “green” and if that was not the case then a QIP would be required in order to improve the next audit.  Ms Burton confirmed that the QIP is done by the nurse practice team and the QIP is an automatic process if things need to be improved.

Ms Burton confirmed that as a newly appointed CNM2 the Complainant would be aware from induction and orientation about the audit process.  The medication audit would show results from the previous month.  Other wards also had a QIP as a result of the audits but the Complainant’s ward had five areas of concern.

Ms Burton gave evidence that the supports to improve audit results come about from linking with practice development and all ward managers have direct access.  Ms Burton explained that the rostering for CNMs is done on “Tams” by the CNM at local level.  Ms Burton confirmed that she could not have approved the Complainant to leave early a week in advance as she would have to take patient acuity levels into account on the day.   In addition to this any approval would have to be done on the system and not verbally.  Ms Burton also confirmed that she would expect the CNM2 from a ward to attend the 12.30 daily huddle.

Ms Burton explained that the INEWS incident on 27 and 28 November was upsetting.  The patient’s condition was deteriorating and was transferred to the High Dependency Unit (HDU).  Concerns were raised by the night nurse in relation to the level of care provided.   She met with the Complainant who was very upset.  A total of five staff were interviewed as part of the investigation.  The Complainant was asked the same questions as the other staff.  It was confirmed by all staff that the practice of writing the results on paper and not putting them directly into a patient’s chart was the practice.  The Complainant confirmed to her that she knew this was happening.  The follow up actions arising from this were that one staff had informal counselling, all staff were required to complete training on the HSE Land and there was PIP put in place for three staff.  The Complainant was not put on a PIP as she was on sick leave.  Of the three staff two were Irish and one was non-Irish.  Ms Burton explained that her expectations after this incident were that the practice would stop, there would be INEWS retraining and a robust PIP for specific staff.  Ms Burton confirmed that the Complainant did not report the practice on the Q Pulse system.  Ms Burton confirmed that she engaged with the Complainant as part of the preliminary screening and she was agreeable to all the proposed actions.

Ms Burton confirmed that other issues involved the failure to follow up on concerns raised by a patient’s relative post discharge and the failure to follow up with the staff nurse in relation to the non-completion of the form.  There was a Q Pulse issue raised by the Night Assistant Director of Nursing.   There was also an issue in relation to rostering and the Complainant had difficulties in getting staff to move from a particular set roster pattern.

Ms Burton gave evidence in relation to the meeting with the Complainant on 20 December 2024.  This was held with the Director of Nursing and the Complainant outlined that she felt she was getting on great.  The Director of Nursing outlined a number of concerns such as INEWS, escalation, absconding, rosters, swabbing and rounding and getting to know her patients.  Ms Burton agreed that these concerns were outlined in the letter to the Complainant from HR on 23 December 2024.

Ms Burton confirmed that the Complainant was in shock when she realised that she would not pass her probation and she became very quiet. The Complainant was advised that the CNM2 role was a step up too much and she was offered a number of options such as resign or reassign.

Ms Burton confirmed that she observed that the Complainant had returned to work on 06 January 2025. A meeting was organised with her and HR and she was advised that she could not continue to work as she had failed her probation.   Ms Burton confirmed that the Complainant was initially doing well and there was an improvement on the ward.  However, multiple issues arose after she returned from holidays.

Ms Burton was asked if the Respondent made a referral to NMBI given the concerns they outlined about the Complainant’s clinical competence.   She confirmed that they did discuss this option but ultimately decided not to make such a referral.

Cross examination – Ms Burton:

Ms Burton was cross examined by Ms Brehony on behalf of the Complainant.  She was asked if the audits were an important KPI and she confirmed that they were.  She also confirmed that the audit results are usually issued the following day.

Ms Burton agreed that she would never approve leave a week in advance.  It was put to Ms Burton that the Complainant worked Monday, Tuesday, Thursday and Friday and she disagreed and stated that the Complainant was contracted to work five days per week. 

Ms Burton was asked what happened on Monday 2nd December 2024 in relation to the patient.  She confirmed that the patient was deceased and at the 7.30am huddle the night Assistant Director of Nursing was upset.  She had looked at the patient’s chart and noted that no observations were recorded in the chart and she raised this as a cause for concern.  Ms Burton confirmed that the 6am to 8am shift would be covered by night staff, the 8am to 8pm shift covered by day staff and the 8pm to 11pm shift would be covered by night staff.  She agreed that there were three different shifts and five staff involved.  As a result of this she discussed the matter with the Director of Nursing.  She then met the Complainant and advised her of the cause for concern.  She outlined the process to interview staff involved and that HR would now be involved as this was a fact-finding exercise.  She met with the nurse involved and he confirmed that he had done the observations but did not chart them properly.  Ms Burton said that the Complainant stated that this was the first time she heard this.

Ms Burton confirmed that she had one meeting with the Complainant in relation to this and she stated that a staff nurse told her that it was the practice on the ward to record the observations on paper and later transcribe in the patient’s chart.

Ms Burton was asked what supports were offered to the Complainant in relation to assisting her move staff from set days.  She stated that she attended the ward every day or every 2nd day and would speak with the Complainant.  She explained that the roster needed to cover the service and that the issue would be best addressed locally.  She offered to sit in on meetings with the staff involved if the Complainant felt it was necessary.

It was put to the witness that the Respondent’s submission noted that a number of serious incidents took place on the Complainant’s ward after her return from annual leave on 08 November 2024 but no record of these was put to the Complainant.  Ms Burton stated that the issues involved the INEWS incident, the incident involving the patient who subsequently died, the discharge screening and the lack of follow up on the phone call.

Ms Burton confirmed that she had no role in engaging with HR when someone fails their probation.

Evidence – Ms Mary Kirwan:

Ms Kirwan gave evidence on oath on behalf of the Respondent.  She confirmed that she is the Head of HR with the Respondent and took up that role in 2022.  She gave evidence that the issues in relation to the Complainant came to her attention as she was aware of some of the incidents and more specifically when the Director of Nursing sought advice from her in early December 2024 about the Complainant’s probation.  These issues included lack of communication and leadership in her CNM2 role, timekeeping, and several serious incidents on the ward.

Ms Kirwan outlined that she discussed a few options with the Director of Nursing. She advised the Director of Nursing to consider placing the Complainant in another nursing role in the hospital.  Ms Kirwan confirmed that this would not normally be done and when an employee does not successfully pass their probation their employment is terminated with one week’s notice.  Ms Kirwan also noted that the Complainant had come to them from another hospital and the Respondent supported her in a number of ways, including financially,

Ms Kirwan gave evidence that her next involvement with the Complainant took place when she received an email from her on 23 December 2024 in which she outlined several concerns about being told that she had failed her probation.  Ms Kirwan confirmed that she wrote to the Complainant on 23 December 2024 and outlined that she would normally meet with her but given the time of year and leave arrangements she considered that it would be in the Complainant’s interest to issue a response.  Ms Kirwan confirmed that she discussed the Complainant’s concerns with the Director of nursing and the Assistant Director of Nursing and her reply was based on that discussion.  Ms Kirwan stated that she wanted to provide as much detail as possible to the Complainant. 

Ms Kirwan was asked to explain why she decided to include the sentence about reminding the Complainant about the financial support they provided to her in relation to a post graduate diploma.  Ms Kirwan explained that the reason for this was that they recognised that the Complainant had certain skills and they wanted to retain her.  She denied that this was in any way a threat against the Complainant.

Ms Kirwan outlined that the Complainant was then on paid sick leave until she returned on 6 January 2025.  Ms Kirwan clarified that it would not be normal for an employee on probation to be paid sick leave.

Ms Kirwan gave evidence that she met with the Complainant on 6 January 2025 along with Ms Burton, Assistant Director of Nursing.  She explained that the reason for this meeting was that having advised the Complainant that she failed her probation on 20 December 2024 she could no longer remain in that role on the ward and they wished to discuss another role with her.  The role envisaged was that of a Senior Staff Nurse.   Following this meeting the Complainant went on sick leave.  Ms Kirwan confirmed that she followed this meeting up with an email to the Complainant on 6 January 2025 and confirmed that as she had not successfully passed her probation she could no longer work as a CNM2 on the assigned ward.  She also acknowledged that the Complainant had appealed the decision and an appeal hearing was scheduled for 15 January 2025 and pending the outcome of that appeal the Complainant would continue to be paid as a CNM2.

Ms Kirwan confirmed that the redeployment under consideration was to move the Complainant to a Senior Staff Nurse role but she would not accept this.  The Complainant was on sick leave from 6 January 2025.  She wrote to the Complainant again on 9 January 2025 and outlined details of why her probation was not successful.  She explained that the purpose of this letter was to ensure and confirm exactly the reasons why she failed her probation and to be clear where the process was now at.

Ms Kirwan gave evidence that the day before the appeal hearing (14 January 2025) the Complainant escalated her appeal to the CEO.  Ms Kirwan stated that as the appeal hearing was scheduled for the 15 January she decided to proceed as all her concerns were in relation to her failed probation.  The appeal hearing went ahead and the Complainant was represented by the INMO official.  Following this meeting she sent a note in which she addressed the eight points raised by the Complainant.  Ms Kirwan confirmed that those eight points were outlined in the meeting note and a copy of this was opened at the hearing.  Ms Kirwan confirmed that at no stage did the Complainant raise any issue in relation to discrimination at this meeting.  The INMO did make representations on her behalf at the meeting and these were in relation to her probation being allowed to continue.

Ms Kirwan gave evidence that the remedy sought by the Complainant was that she would not be deemed to have failed her probation.  Ms Kirwan also gave evidence that since she commenced in the role as Head of HR 13 employees have failed their probation and 7 of these were nurses.  Of the 7 nurses they were of mixed race, including Irish.  Ms Kirwan confirmed that in each of these cases the employees finished their employment with one week’s notice.

Ms Kirwan outlined that her outcome letter to the Complainant on 4 February 2025 reviewed the main points highlighted at the meeting.  The outcome also proposed extending the Complainant’s probation by four months.  Ms Kirwan confirmed that she was satisfied that all the factors they considered were outlined in the letter and at no stage did the Complainant’s race become a factor.

Ms Kirwan outlined that the Complainant was sent an email on 7 February 2025 and this was a response to her request to change some of the meeting notes.  Ms Kirwan noted that the most significant change proposed was that the Complainant thought that her probation would be extended when concerns were raised about the INEWS escalation issue.

Ms Kirwan clarified that the outcome was that the Complainant’s probation would be extended by four months and that a PIP would be put in place as it would be reasonable to assess her performance as a CNM2.  Ms Kirwan could not recall if the Complainant raised any issue about the signing of her probation form.  Ms Kirwan confirmed that no stage were any issues in relation to discrimination raised.  No such issues were raised in the Complainant’s letter to the CEO and there were no issues of a discriminatory nature raised on the Complainant’s behalf by the INMO.

Ms Kirwan outlined that the Complainant’s response was that she wanted to come back to continue with the remaining six weeks of her probation.  She also did not want the Director of Nursing or the Assistant Director of Nursing to have any role in her assessment during that time.  Ms Kirwan outlined that this was completely unacceptable to the Respondent as the Director of Nursing and the Assistant Director of Nursing are professionally accountable for the nursing care provided by the Respondent and they are also responsible to the Respondent for the nursing governance in the hospital.

Ms Kirwan gave evidence that she wrote to the Complainant on 20 February 2025 which was a response to the Complainant’s communication on 18 February 2025.  This letter clarified what was proposed and that was that her probation would be extended for a further four months and undergo a PIP during that time.  It was also clarified that the Director of Nursing and the Assistant Director of Nursing could not be excluded from her assessment or supervision during the extended period of her probation.   Ms Kirwan confirmed that the Complainant was encouraged to return to work and avail of the available supports.  The Complainant did not accept the proposal and did not return to work.  She submitted her resignation on 12 May 2025.  Ms Kirwan also confirmed that the Complainant was given an opportunity to rescind her resignation but she did not do so.  She remained on full pay from February until the date of her resignation.

Ms Kirwan gave evidence that she was involved in the investigation of the incident in relation to a deceased patient.  Four staff, including the Complainant, were interviewed.  Two of those interviewed were Irish and the remainder were not.  All of those staff were put on a PIP but none, apart from the Complainant, were undergoing probation.  Ms Kirwan confirmed that the Complainant did not want a PIP and she was seeking more favourable treatment.  Ms Kirwan stated that the Complainant did not see herself as being responsible for the incident and her leadership and communication were not at the level expected of a CNM2.

Ms Kirwan confirmed that the first occasion she became aware of the Complainant’s complaint of discrimination was when she received a copy of her WRC complaint form on 11 August 2025.

Cross examination – Ms Kirwan:

Ms Kirwan was cross examined by Mr Fitzpatrick, INMO, on behalf of the Complainant.  She was asked about the advice she gave to the Director of Nursing in relation to the Complainant’s probation.  She confirmed that as she was a member of the management team, she was already aware of some of the serious incidents involving the Complainant.   Ms Kirwan agreed that there were two positive reviews and the Complainant failed the last one.  Ms Kirwan confirmed that the options she outlined to the Director of Nursing were that the Complainant failed, the probation could be extended or the Complainant could be redeployed to another role.

Ms Kirwan was asked if it was appropriate for her to advise the Director of Nursing given that she was the appeal person.  Ms Kirwan stated that there was no appeal in place when she spoke with the Director of Nursing.

It was put to Ms Kirwan that the reference in her letter of 23 December 2024 to the Complainant and reminding her of the financial support given to her was threatening in nature and she wanted the money back from the Complainant.  Ms Kirwan disagreed and stated that they wanted to recognise the skills the Complainant had and retain her.

Ms Kirwan agreed that the Complainant was on sick leave until she returned to work on 6 January 2025.    It was put to Ms Kirwan that the Complainant was then suspended.  Ms Kirwan stated that the Complainant was put on paid leave and this leave was not recorded as a suspension.  Ms Kirwan confirmed that due to the unusual nature of the situation the leave was noted as paid leave.

Ms Kirwan agreed that a move to a Senior Staff Nurse was a demotion from CNM2.  It was put to Ms Kirwan that the INMO request at the appeal was for a continuation of the Complainant’s probation and not an extension.  She agreed that was the position.  Ms Kirwan confirmed that the minutes of the appeal meeting were not sent to the Complainant in advance of the outcome.  It was put to Ms Kirwan that in that case the Complainant’s input to the minutes would have no bearing on the outcome and she agreed.

It was put to Ms Kirwan that her evidence was that the Complainant never raised any concerns in relation to discrimination but in the Complainant’s letter of 14 January 2025 she highlighted that she did not feel that she was “… treated in an equitable or respectful manner throughout this process”.  She also stated that she felt like a second-class citizen and that she was “treated disproportionately and unfairly…” The Complainant, on 18 February 2025, also stated that the flaws in the process “raises significant questions about the integrity of the process and the equitable application of the organisational policies”.  Ms Kirwan stated that she does not interpret these comments as being a complaint of discrimination.

Ms Kirwan was asked to clarify the purpose of the meeting with the Complainant on 6 January 2025. Ms Kirwan outlined that the Complainant returned to work after being on sick leave.  She had not indicated that she was returning and it was necessary to meet with her to explain that as she had failed her probation she could not continue to work as a CNM2 on the ward.  Ms Kirwan and the Assistant Director of Nursing met with the Complainant and explained that she could not remain on the ward.  The Complainant was then placed on paid leave.

It was put to Ms Kirwan that the medication safety audits showed that other wards had a much poorer outcome than the Complainant’s ward and these staff were not placed on a PIP or had any sanction.  Ms Kirwan noted that questions in relation to these audits would be best responded to by the Director of Nursing who had the clinical expertise.

It was then put to Ms Kirwan that the outcome of the Complainant’s appeal was that the decision was overturned.  She agreed. It was put to Ms Kirwan that the reason it was overturned was that the appeal panel realised that there was some unfair treatment of the Complainant.  Ms Kirwan stated that she did not agree with that proposition.

Re-Direction – Ms Kirwan:

Under redirection Ms Kirwan was asked if the Complainant raised an issue at the appeal hearing that she was being treated as a second-class person.  She confirmed that this was not raised by the Complainant.  Ms Kirwan also confirmed that the acting CNM2 was Irish.   She was not sure if any other CNM1, CNM2 or CNM3 failed probation.

Ms Kirwan was asked if the Respondent’s disciplinary policy applied to employees who were on probation and she confirmed that it did.  In the Complainant’s case the policy applied was the probation policy and this had the same standards.

Ms Kirwan was asked what option the Complainant was given at the meeting on 6 January 2025 and she confirmed that she was given the option to work as a Senior Staff Nurse in the Endoscopy Department.

In response to questions from the Adjudication Officer Ms Kirwan acknowledged that Ms Burton confirmed that the Complainant was shocked and upset when she was told that she failed her probation but she noted that the Complainant was aware of the issues which had arisen. 

It was put to Ms Kirwan that her evidence was that the Complainant’s letter to the CEO was similar to her grievance letter but there was in fact some additional material.  Ms Kirwan stated that the letter to the CEO was sent the day prior to the Complainant’s appeal hearing and that meeting addressed all the issues she had highlighted.

Closing Submission – Respondent:

In a closing submission on behalf of the Respondent, Ms Crosbie, Ibec, noted that a significant volume of evidence was adduced to show that the management of the Complainant’s probation had nothing to do with her race.  The rules in relation to discrimination are clear – there must be prima facie evidence and the Complainant gave evidence in relation to eight incidents of alleged discrimination but none of these shift the burden of proof to the Respondent.

The Complainant must demonstrate a causal link between her race and the treatment she complains of.  In the Complainant’s first example she cites a staff nurse who was on probation.  A staff nurse is not held to the same standard of performance as a CNM2 and therefore this cannot be a comparator.

In relation to redeployment and the Complainant’s assertion that this was due to race the evidence from the Director of Nursing and Assistant Director of Nursing was that anyone can be redeployed including themselves when the situation warrants it.  Such redeployment is not based on race.

The Complainant did not provide any evidence of what the action plan was for other staff who had issues in relation to their medication safety audits.  The medication audit in question took place in November 2024.

The issue in relation to the INEWS escalation showed a lack of leadership and management on the part of the Complainant.  She did not explain how this was linked to her race. In relation to the swabbing incident, it was correct to hold the Complainant responsible because she was the ward manager and not because she was from India.  The Complainant has also not established any link between the rosters issue and her race.

The Complainant’s allegations of unfair treatment do not amount to discrimination.   The Complainant’s evidence about her manager sitting on her desk was contradicted by the evidence of the Assistant Director of Nursing.    The letter of 6 January 2025 is consistent with the letter sent in December 2024.  It was also clear from the cross-examination that the Complainant was the only CNM2 on probation at that time.

It was submitted on behalf of the Respondent that no prima facie evidence was adduced at the hearing.  What has happened is that the Complainant was hired for the wrong role and failed her probation.  None of the eight examples cited by the Complainant relate to discrimination on the ground of race.  They are all related to the probation process itself.

The Respondent also notes that the Complainant felt it was ok for her to leave the ward on a day when it was short staffed after having left an alert to this on the QPulse system at 8.30am.  The Complainant believed she was supernumerary and that was not correct.  The Respondent also notes that during her evidence and cross examination the Complainant struggled with her answers in relation to the leadership aspect of her role. Her evidence was that it was a 15-bed ward when in fact it was a 16-bed ward.

The Complainant’s evidence is not reliable as her recollection is tainted by the upset she described.  The Director of Nursing provided evidence in relation to why she hired the Complainant and noted that she assigned her to a smaller ward.  The Director of Nursing confirmed in evidence that she made a mistake in giving the Complainant a CNM2 role.

Ms Burton gave evidence that she did the first competency assessment one month after she (Ms Burton) started working for the Respondent.  The issues arose after the Complainant returned from her annual leave. Ms Burton also gave evidence that she did not approve the Complainant leaving the ward on 27 November and she confirmed that any such requests must be sent by email.  Ms Burton also gave evidence in relation to other poor practices such as writing details on paper and transferring to charts later.  Ms Burton was also clear in relation to the Huddle and what was expected of the Complainant.

Ms Kirwan gave evidence that she was adhering to the Respondent’s probation policy.  No discrimination issues raised under any process.  The suggestion that she was seen as a second-class citizen does not in itself amount to discriminatory treatment.

It is the Respondent’s position that the Complainant was provided with more favourable treatment during her employment.  She was given financial support, in terms of her education, sick leave and reimbursement to her previous employer.  The reality is that the Complainant did not accept the outcome.    

The Respondent believes that there was no prima facie evidence adduced and the Complainant has not met the required threshold.  She raised a range of issues but these had no link to any discriminatory treatment.  There was not a shred of evidence of unfavourable treatment due to her race.  The Respondent is clear that it has provided clear evidence as to why the Complainant failed her probation.  In that context there is no question that the requirement to provide prima facie evidence has not been met and the burden of proof has not shifted to the Respondent.

CA-00074022-001:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Acts 1998 – 2015.  She submitted her complaint to the WRC on 2 August 2025.  In her complaint form she alleges that she was discriminated against on the basis of the race ground and she is seeking redress in the form of compensation.

The Respondent submits that the complaint is not well founded as no discrimination took place and the Complainant did not provide sufficient evidence to ground a complaint under the Act.

Section 6 of the Employment Equality Act, 1998, states:

“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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)”.

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated against by the Respondent because of her race. 

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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.”

The effect of Section 85A above 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.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility was on the Complainant to show that, based on the primary facts, she has been discriminated against because of her race.

The Complainant provided the hearing with a submission which outlined a number of events since her employment commenced on 8 July 2024 up to the date of her resignation on 12 May 2025. The Complainant submits that her probation was deemed to have been failed on the grounds of her race.

The explanation provided by the Labour Court in its decision on Melbury Developments Ltd vArturs Valpeters [2010] 21 ELR 64, which addresses the onerous nature of the burden of proof is also helpful:

“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 speculation 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.”

In assessing whether the Complainant has discharged the burden of proof under Section 85A of the Act, I have considered the entirety of the evidence adduced at the hearing. The Complainant asserted that her race was the factor which determined she failed her probation. However, she has failed to establish primary facts from which it could reasonably be inferred that the principle of equal treatment was not applied to her. Mere assertion, without supporting evidence, is insufficient to shift the burden of proof to the Respondent.

The Respondent’s witnesses gave evidence that the Complainant’s probation was managed in line with their probation policy and the issues which were highlighted were of such significance that her probation was deemed to have failed.  During my review of the evidence provided by the witnesses I note a number of inconsistencies between them.  These include differing dates given for the swab incident (16 December – Complainant, and 11 December Ms McConnell and Ms Burton); differing accounts of how many staff and whether the Complainant herself, were placed on a PIP following the deceased-patient incident.  There was also a discrepancy in the date of the Complainant’s first competency assessment (22 August – Complainant and 19 August Ms Burton) and conflicting evidence as to whether the Complainant’s departure from the ward had been approved in advance.

I have considered whether these inconsistencies affect the weight I can attach to the evidence of either party.  It is my view that these are peripheral or administrative matters rather than any link to the central question of this complaint which is whether the Complainant’s treatment was connected to her race.  None of the inconsistencies identified, either individually or cumulatively, provide any evidential support for a finding that race was a determining factor in the decisions made about the Complainant’s probation.

It was common case that the Complainant was on probation at the material time. The Complainant’s assertion that her race was a factor in the decision to deem her probation failed is unconvincing.  It does not displace the Respondent’s credible explanation.  I do acknowledge the impact of these events on the Complainant.  It is clear from her evidence that the period from December 2024 onwards was a difficult time for her, coinciding as it did with the Christmas period and while she was looking after two young children.  I accept the Complainant’s evidence that she experienced real distress on being told she had failed her probation, and this resulted in a period of certified stress leave.   While, for the reasons set out above, I have found that the Complainant has not established a prima facie case of discrimination on the ground of race, that finding should not be read as diminishing or dismissing the genuine distress she experienced during this period.

The Respondent’s own management of the Complainant’s probation also warrants comment. Certain aspects of this process fell short of best practice – including the manner and timing of correspondence issued to the Complainant over the Christmas period, and aspects of how her competency assessments and probation review documentation were recorded and communicated to her. These shortcomings matter, particularly given how sensitive a period this was in the Complainant’s life.  However, an imperfect process does not, in itself, amount to discrimination.  The test which I am obliged to apply is not whether the Respondent’s process met the highest standard, but whether the Complainant has established, on the evidence, that her treatment was connected to her race.  For the reasons I set out above I am not satisfied that she has.

I prefer the Respondent’s evidence.  Consequently, I find the Complainant, on the balance of probabilities, has failed to establish a prima facie case of discrimination (for the purposes of this Act) on the race ground. On the basis of the foregoing, I find that this complaint is not well founded.

I have decided that the Complainant was not discriminated against on the race ground by the Respondent.

Discrimination race ground.  Probation not successful.