A healthcare assistant who said he was wrongly linked to a hospital patient’s allegations about being “interfered with” by a worker without a “scintilla of evidence” has secured €10,000 for racial discrimination.
Paul Agbons, an employee of 25 years’ service at the Mater Hospital in Dublin, has secured the compensation on foot of a complaint under the Employment Equality Act 1998.
A Workplace Relations Commission adjudicator concluded that at a minimum, there was “unconscious bias” at play when a manager decided that Mr Agbons was the worker described in a letter of complaint by a patient and suspended him.
Hospital bosses decided six days later he had no case to answer, the WRC heard.
The in-patient, Ms X, alleged that she was “interfered with” sexually over a three-night period by an unidentified worker, whom she did not name, but described as “tall, dark skin, shaved head, not Irish”, the WRC heard.
The complaint letter came in roughly six months after Ms X was discharged, and did not name the worker or indicate the dates or times of the alleged events, the tribunal heard.
A senior nurse-manager, referred to as “FH” in a WRC decision published today, “zeroed in” on Mr Agbons and decided, after looking at the ward roster, that he was the only member of staff working nights who “fit the description”, the tribunal noted.
Mr Agbons, the tribunal heard, is black, and a naturalised Irish citizen of Nigerian extraction.
Mr Agbons gave evidence that Ms FH called him in and told him: “An accusation has been levelled at you. It is a very weighty allegation.”
He was left with the impression that the allegation had been made against him specifically, and not “against a person unknown”, adjudication officer Penelope McGrath wrote.
Mr Agbons’ counsel, Jason Murray BL, appearing instructed by Maria Kavanagh of Tracy Horan & Co Solicitors, said his client was “wrongly identified” as the subject of the complaint and accused “without any objective basis or verification”.
Without a “scintilla of evidence” that he had any connection (save for the colour of his skin) to the complaint, Mr Agbons was informed that he was suspended from the workplace, it was submitted.
The suspension was “direct discrimination”, Mr Murray said, arguing his client was “treated unfairly and targeted because of his race and nationality”.
Denying discrimination, Judy McNamara of Ibec, appearing for the Mater, said the hospital had a duty to protect vulnerable patients and had “no option” other than to investigate the patient’s claim.
The claims were addressed “immediately and with urgency” under the HSE’s Trust in Care policy, she said.
Ms McGrath concluded that Mr Agbons had raised an inference of racial discrimination which the hospital was unable to rebut without evidence from Ms FH.
It was “frustrating” that the nurse manager was not available to testify, she wrote.
She expressed concern with how Ms FH conducted her inquiries.
Under the Trust in Care policy, Ms FH’s job had been only to carry out a “preliminary” examination to assess whether what was alleged “could have happened” – not to make a final finding, she noted.
There were “any number of staff” who could have got access to Patient X’s room with HSE swipe cards, but Ms FH did not look beyond the staff rostered to the ward, Ms McGrath noted. There were three other wards on the same floor, she added.
“The move to purportedly identify and then suspend someone primarily based on the colour of their skin has a clear racial overtone,” Ms McGrath wrote.
“At best FH made up her mind under the influence of an unconscious bias. At worst FH landed on the complainant as a black person and wrongdoer,” the adjudicator added.
She set compensation at €10,000 on the basis that the suspension “only lasted six days” and the employer “had to balance two very difficult situations”.
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