FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : THE COMMISSIONER, AN GARDA SIOCHANA MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM - AND - GARDA MARY FLYNN (REPRESENTED BY FINBAR CAHILL & CO., SOLICITORS) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Equality Officer's Recommendation No. EE11/97.
BACKGROUND:
2. The claimant is attached to the staff at Garda Headquarters, Harcourt Square, Dublin. In September, 1994 she applied for promotion to the rank of Sergeant. She was interviewed by a Regional Interview Board but her application for promotion was unsuccessful. The claimant argues that she has higher qualifications and is more suitable than some of the successful candidates and claims that she was discriminated against on the grounds of her sex and victimised and denied promotion as a result of pursuing a previous claim under the Employment Equality Act, 1977.
The claimant lodged a complaint with the Labour Court in July, 1995 and the Court referred the complaint to an Equality Officer for investigation and recommendation. Following her investigation the Equality Officer found that the claimant had not been discriminated against when she was not short-listed for promotion.
On the 17th of June, 1997, the worker appealed the recommendation to the Labour Court on a number of grounds.
The Court heard the appeal on the 25th June, 1998.
DETERMINATION:
This is an appeal from the Recommendation of an Equality Officer (EE11/97) under Section 21 of the Employment Equality Act 1977 (‘the Act’). The claimant had alleged that she had been discriminated against when she was not short-listed for promotion in January 1995. The claimant had also alleged that she had been victimised on account of pursuing an earlier claim of discrimination against An Garda Siochana under the Act. That claim was decided by the Labour Court on the 21st of November, 1995 against the claimant (DEE8/95).
The Equality Officer had found against the claimant on both claims.
At the appeal hearing before the Labour Court, the claimant accepted that she was unable to substantiate an allegation made before the Equality Officer that persons less suitable than herself had been promoted. She also indicated, through her representative, that she did not intend to pursue an allegation that discriminatory questions had been asked at interview, since she accepted that changes had taken place in the interview procedures and this was no longer a ground for complaint.
The appeal hearing consequently proceeded on the basis of the second aspect of the complaint only, namely that the claimant had been victimised after she had taken an earlier case claiming discrimination.
The claimant’s case was that she had been left without appropriate work to do for a considerable period of time after she had taken a case of discrimination against An Garda Siochana under the Act in late 1993, and furthermore that her immediate superiors had adopted a negative attitude towards her from that time which coloured their input to the promotions interview panel, and thereby had ultimately negatively affected her chances of promotion.
At the hearing, the Court requested that all documentation in the possession of the Garda authorities in relation to the claimant be provided to the Court.
The relevant documentation was provided, and the Court as a result had access to Promotional Assessment Forms for 1995, 1996 and 1997. Unfortunately no records were available prior to 1995 or for the relevant interview in 1994.
Having examined the documents, the Court has concluded that in 1995 and 1996 the claimant’s immediate superiors had an extremely negative view of her capabilities. Such negative view was not, however, continued in the 1997 reports of a subsequent superior, who wrote in glowing terms about the claimant, and credited her with having the very qualities which she was supposed to have lacked in the years before. The positive later assessments were supported by an assessment given directly to the Court by a former Assistant Commissioner who had worked closely with the claimant.
The Court also heard evidence to the effect that the views of a candidate’s immediate superiors weigh heavily with an interview panel, and are in fact a key element in whether or not a person is put forward for promotion.
What has unfolded in this case is a serious conflict of views among senior garda officers about the capacities of one particular member ofAnGarda Siochana. Having heard the witnesses and the submissions made, and having examined the documentation that was produced, it is clear to the Court that for a certain period of time relations between the claimant and her immediate superiors were extremely bad and that those superiors held very negative views about her. These views are totally at variance with the views of a number of superior officers with whom the claimant later worked. In certain respects, the earlier views are flatly contradicted by the experience of subsequent superior officers. No explanation has been offered for the discrepancies.
The Court is conscious that, in any workplace, difficult situations can arise between colleagues. Clashes of personality and personal intolerances can colour working relationships. The Court is equally conscious that the interview procedures in An Garda Siochana are agreed procedures, and that in general they work satisfactorily. It is clear, however, that a problem can arise if the promotions procedure is heavily influenced by the reports of immediate superiors and if those superiors, for whatever reason, hold incorrect, unfair or unbalanced views of a junior colleague.
What the Court has to determine in this case is whether the claimant was in fact victimised by her superiors of the time for taking a case of discrimination against An Garda Siochana. The question is, therefore, whether the negative views of the claimant were or were not well-founded, and whether the time at which they were held coincided with the period of which the claimant complains.
Inevitably, given the nature of the complaint and the unavailability of material evidence, it is difficult to establish the truth with absolute certainty. The Court has, therefore, looked at the totality of the available evidence and considered various possibilities to explain contradictions in that evidence. Its conclusions are based on a balance of probabilities.
These are the Court’s findings:
- the claimant alleged she was left without suitable work; the evidence submitted which, it was claimed, would refute this allegation does not remotely do so;
- the views of an immediate superior have a profound impact on the consideration by an interview panel of a candidature for promotion;
- the views of the claimant’s immediate superiors were negative towards her in 1995 and 1996;
- the written views for 1994 are missing; it is most unlikely that the same immediate superiors held and expressed different views in 1994 than they did in 1995 and 1996;
- those negative views were totally turned around in the 1997 assessment records - by which time the claimant had acquired new superiors;
- no reasonable explanation was offered as to why the claimant should attract negative comment consistently under one set of superiors, and immediately on acquiring new superiors attract consistently positive comment;
- given the above, it is probable that the negative views of the claimant had been unjustified;
- if the claimant’s immediate superiors in 1994 viewed her capacities in a negative light, it is certain that their views negatively affected her chances of promotion from that time;
- it is furthermore very probable that they also carried their negative attitudes
into their direct dealings with her and did indeed deny her appropriate work.
Conclusion
On the balance of probabilities, and in the absence of any other reasonable explanation for the totally conflicting views held about the claimant’s qualities and capacities, the Court is satisfied that the claimant was victimised by her superiors following the taking by her in late 1993 of a claim of discrimination under the 1977 Act.
The Court finds that the claimant did suffer discrimination, in that she was penalised for having made a reference in late 1993 under Section 19 of the Act. The Court therefore holds that there was discrimination under Section 2(d) of the Act, and awards the claimant the sum of £7,500 compensation.
A preliminary issue arose in this case, namely whether the Minister for Justice Equality and Law Reform was properly cited as a Respondent in the case. The Court is satisfied that it was unnecessary but not improper to cite the Minister as employer along with the Commissioner of An Garda Siochana. The Commissioner clearly has the general direction and control of the Gardai, but the members of the Gardai are state employees under the Department of Justice Equality and Law Reform. The State is thus ultimately responsible to the claimant, and the latter Department is the appropriate arm of the State.
Signed on behalf of the Labour Court
Finbarr Flood
17th November, 1998______________________
F.B./D.T.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fran Brennan, Court Secretary.