HSE to pay €13,000 to foreign national who had job offer withdrawn due to discriminatory qualification requirements

Seán McCárthaigh

The HSE has been ordered to pay €13,000 in compensation to a foreign national who had a job offer withdrawn due to discriminatory requirements it set over driving qualifications.

The Workplace Relations Committee ruled that the HSE had discriminated against Lithuanian worker, Gediminas Gvazdauskas, on grounds of nationality in breach of the Employment Equality Act 1998.

Mr Gvazdauskas had a job offer withdrawn as a result of his inability to provide a statement from the National Driver Licence Service (NDLS) because he held a driving licence from Lithuania.

The WRC heard the impact of the discrimination was significant as the role was with a service with which he had a long-term working relationship and in which he had reasonably hoped to progress his career.

It awarded him the maximum sum of €13,000 allowed under the legislation.

The WRC also ordered the HSE to initiate a review of its selection criteria in roles for drivers in the organisation.

It also directed the HSE to write to the Irish Human Rights and Equality Commission within six months to outline the findings of that review and seek feedback on whether it was meeting its legal obligations.

The WRC heard Mr Gvazdauskas had worked as a site manager for an outsourced contract facilities company that operated in the Central Mental Hospital in Dundrum for about 14 years.

Mr Gvazdauskas decided not to transfer to a new provider of the service when the hospital moved to Portrane in north Dublin and instead applied for a job as a porter/driver directly for the National Forensic Mental Health Service through an open competition.

He told the WRC that he was successful in the application, subject to providing a copy of both his driving licence and a copy of a driver’s record from the National Driver Licence Service.

Mr Gvazdauskas said he could not provide a statement from the NDLS as he held a Lithuanian driver’s licence.

He engaged with CPL, the company overseeing the recruitment process, which revoked his job offer after it was determined that he did not meet the requirements of the competition.

Although Mr Gvazdauskas submitted a complaint to the WRC about both CPL and the HSE, it was accepted by the HSE that they had set the criteria in the job application process, while CPL’s role was limited to administering its recruitment campaign.

Mr Gvazdauskas also had a letter from the Lithuanian licensing authorities which showed he had no offences.

The complainant said he was not alleging that the HSE set out to behave in a discriminatory fashion.

However, he said the requirements to provide a driver statement from the NDLS had the effect of discriminating against non-Irish nationals.

The HSE denied that it had discriminated against the complainant and stated Mr Gvazdauskas had been unable to fulfil a key requirement of the role for which he had applied.

It claimed the vacant role involved driving and the HSE needed to provide the documentation which was unrelated to race as any nationality can obtain an Irish driving licence once they are resident in the Republic.

The HSE said it had provided multiple extensions of deadlines to allow Mr Gvazdauskas to fulfil the requirement but he had not.

The WRC heard that the complainant had provided a letter from the Road Safety Authority which showed that three penalty points he had previously accumulated had expired at the time of the recruitment process when he was unable to obtain a statement from the NDLS.

He also obtained Garda vetting and vetting from police in Lithuania.

Mr Gvazdauskas said the NDLS had informed him that they could not issue a driver’s statement as they held no records about his driving licence.

The WRC heard that the HSE told CPL that it understood that the complainant could only drive on an EU licence for a maximum of 12 months which was incorrect as the regulation only applies to non-EU and non-EEA motorists.

WRC adjudication officer, David James Murphy, acknowledged there was a question as to whether Mr Gvazdauskas should ever have held a Lithuanian driving licence given he was a resident in Ireland when he obtained it.

However, Mr Murphy said the HSE’s requirements that he had to obtain a NDLS driver’s statement was separate to the requirement to have a driving licence.

He noted that the HSE did not make having an Irish driving licence a prerequisite for obtaining the role.

Mr Murphy said its apparent willingness to accept applicants who held a foreign driving licence meant they were indirectly restricted from obtaining the post.

He observed that Mr Gvazdauskas’ unchallenged evidence was that it was not possible for a person with a clean foreign licence to obtain a driver statement from the NDLS.

Mr Murphy said he was satisfied from the evidence that indirect discrimination had occurred albeit “seemingly unintentionally.”

The WRC adjudicator said it was reasonable to conclude that an Irish driver was far more likely to have an Irish driver’s licence than someone with a different nationality.

He said the requirement to obtain a NDLS driver statement placed non-Irish nationals at a disadvantage in the recruitment process, while the HSE had not provided any justification for such a requirement.

Mr Murphy acknowledged that the HSE had a legitimate aim in trying to find out if job applicants had any endorsements or impediments placed on their driving licences.

However, he said it was not satisfied that the HSE’s means of pursuing that aim was appropriate and necessary.