SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
COUNTY DONEGAL VEC
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Mr. Somers
1. (a) Appeal by Co.Donegal VEC against Equality Officer's Recommendation DEC-E-2001/30; (b) Appeal by the worker for implementation of Equality Officer's Recommendation DEC-E-2001/30
2. The worker alleges that she was discriminated against within the meaning of Section 2(a) of the Employment Equality Act, 1977 and in contravention of Section 3 of that Act. The claim was referred to an Equality Officer for investigation. On the 27th September 2001 the Equality Officer issued his decision.
Co. Donegal VEC appealed against the Equality Officer's Recommendation in accordance with Section 21 of the Employment Equality Act, 1977. The claimant appealed for implementation of the Equality Officer's Recommendation.
The Court heard the appeals on the 12th July 2002 and on the 9th August 2002.
This matter came before the Court by way of an appeal by Co. Donegal Vocational Educational Committee (The VEC) against the recommendation of an Equality Officer in a dispute concerning a claim by Ms Josephine Riney (the claimant) that she had been discriminated against when the VEC failed to appoint her to the post of Assistant Principal at Milford Vocational School, Co. Donegal. In his Recommendation the Equality Officer found that the VEC did discriminate against the claimant on the basis of her sex in terms of Section 2(a) and 2(c) and in contravention of the provisions of Section 3 of the Employment Equality Act 1977.
The Equality Officer recommended that the claimant be appointed to the position of assistant principal at Milford Vocational School with effect from the date of appointment of the male appointee and that she be paid arrears of any salary due to her from that date. The Equality Officer further recommended that the VEC pay to the claimant compensation in the amount of £5,000 for the distress that she suffered as a result of the discrimination. Finally, the Equality Officer recommended that the VEC make every effort to ensure that selection board reflect, as far as is reasonably practical, the gender mix of candidates in further promotional competition.
The claimant also appealed pursuant to Section 21(1) of the Act for a determination that the Recommendation of the Equality Officer had not been implemented.
It is clear that where a party enters an appeal against the recommendation of an Equality Officer it operates as a stay on the recommendation. It is also clear from sections 22 and 24 of the Act that a determination of the Court on an appeal supplants the recommendation of an Equality Officer. Hence, in such cases, an appeal for a declaration that the recommendation has not been implemented does not arise.
Consequently, the Court considered the appeal against the Equality Officer’s Recommendation.
At the commencement of the hearing the claimant sought to have the appeal against the Equality Officer's recommendation dismissed on the basis that it was not properly before the Court. The claimant also challenged the VEC’s right to be represented by IBEC. On these points she made three submissions as follows:-
(a) That the VEC had not entered an appeal. The claimant submitted that the notice of appeal was submitted by IBEC, which was not a party to the proceedings.(b) That the notice of appeal did not specify the grounds of appeal with sufficient particularity so as to comply with Section 21(2)(d) of the Act.
(c) That the Court should not allow the VEC to be represented by IBEC for reasons which were stated to the Court.
Rather than dealing with these applications as a preliminary matter, the Court indicated that the points made would be considered and addressed in its final Determination.
Response to Preliminary Issues
With regard to the first point, it is abundantly clear that by letter dated 22nd October 2001, IBEC, acting on behalf of the VEC gave notice of appeal pursuant of Section 21(1)(d) of the Act. The Court accepts that the notice of appeal was properly served and the respondent’s submissions to the contrary are wholly without merit.
With regards to the form in which notice of appeal was given, the letter of the 22nd October 2001 sets out the ground upon which the VEC intended to rely in general terms, as is normal practice. It is not the practice of the Labour Court to require parties appearing before it (the majority of whom are either represented by industrial relations practitioners or are unrepresented) to particularise in the notice of appeal all the arguments upon which they will rely in prosecuting the appeal.
Moreover, the claimant did not claim, nor could she claim, to have been in anyway prejudiced by a lack of detail in the initial notice of appeal. The claimant received, in the normal course, a copy of the VEC’s detailed submission to the Court and was well aware of the case she was expected to meet.
The Court is fully satisfied that the notice of appeal submitted on the 22nd October 2001 complied fully with the requirements of Section 21(1)(d) and the appellant’s submissions to the contrary are without merit.
With regard to the claimant’s challenge to the right of IBEC to represent the respondent, the reasons put forward are so astonishing that the Court does not think it appropriate or necessary to recite them in this Determination. It is sufficient to say that parties to proceedings before the Court do not have any right of input into who can represent their opponent.
The facts of this case are fully and accurately recited in the report of the Equality Officer. Further, the facts are not seriously in dispute between the parties. It is only the inferences, which should be properly drawn from the primary facts that are at issue.
In summary, the salient facts are as follows:
1. The claimant is employed by the VEC as a Teacher at Milford Vocational School.
3. The claimant applied for the vacant post and was interviewed on 28th September 1998. She was one of seven candidates.
4. The claimant was unsuccessful and was so advised on 21st October 1998. A male candidate was appointed to the position.
5. The selection board consisted of five members. There were four men and one woman.
6. Under the terms of the competition marks were awarded to each candidate by the selection board against agreed criteria. At the end of this process, and after all the marks for each candidate had been totalled, additional marks were awarded for service with the VEC.This practice was in accordance with an agreement between VEC employers nationally and the Union representing Vocational Teachers.
7. At the end of the competition and after marks had been added for service, the claimant and the successful candidate tied for first place.
8. The selection board decided to separate the candidates by reference to their length of service. As the male candidate had the longer service he was appointed.
Issues for Determination
Having reviewed the submissions of the parties the Court is satisfied that the first question for determination is whether the claimant has established that the selection process was so unfair as to raise an inference of discrimination. If the Court is satisfied that the claimant has discharged that onus, it is for the VEC to prove that the claimant did not suffer discrimination on grounds of her gender.
In her submissions the claimant sought to impugn almost every aspect of the selection process. However, on the evidence as a whole the Court has concluded that there are only two aspects of the process which give rise to serious concern, namely: -
(a) the lack of gender balance on the selection board, and
Gender Balance of the Selection Board.
There were five members of the selection board only one of whom was a woman. In dealing with this aspect of the case the Equality Officer noted that whilst there are more female teachers than males employed by the VEC, there is a predominance of males in senior positions. The Equality Officer considered that this placed an additional onus on the VEC to ensure gender balance on selection boards. The Court fully concurs with the Equality Officer’s conclusion in that regard.
In considering whether the absence of gender balance on the selection board constituted evidence of discrimination, the Equality Officer referred to a decision of this Court inMitchell v Southern Health Board (AEE/98/9)in which the following passage appears:
- “Gleeson (i.e. the Rotunda Hospital / The Mater Hospital and Dr. Noreen Gleeson [DWE003]) can not be regarded as authority for the proposition that gender imbalance in an interview board must in itself lead to an prima facie finding of discrimination in every case. Nevertheless, the Court considers that such a practice is potentially discriminatory and can form part of the evidential chain on which a claim of discrimination can be made out. The Court would strongly urge all appropriate parties to have full regard to the now accepted need to ensure gender balance at all times in the process of the selection for appointment”.
It is clear that a lack of gender balance, whilst highly undesirable, is not in itself fatal where a selection process is impugned. However, where there is such an imbalance, coupled with other evidence of unfairness, it can be relied upon in making out a prima facie case of discrimination.
When considered in conjunction with the manner in which the final decision on the selection of the successful candidate was taken, the Court is satisfied that the lack of gender balance is a relevant factor in this case.
The Method of Final Selection.
The second point of concern relates to the method used by the selection board to separate the claimant and the successful male candidate when both were found to have scored equally against the agreed criterion used in the competition.
The procedure used by the members of the selection board was to mark the candidates against a number of predetermined criteria. Only when this process was completed and the final scores determined, was the selection board made aware of the length of service of each candidate. Marks were then awarded on the basis of service, which were added to those accrued in the competitive aspect of the process. Service accounted for 30% of the total marks in the competition.
Both the successful candidate and the claimant benefited significantly from the allocation of additional marks for service. The claimant moved from fourth place in the competition (before services were added) to joint first. The successful candidate moved from fifth place to joint first when service was added.
The selection board was then faced with a dilemma in that two candidates had precisely the same marks and it was necessary for them to consider how to proceed in those circumstances. They decided that they would use service a second time which obviously favoured the successful male candidate who, at that point, the selection board knew to have the longer service.
Use of Service as Criteria
The use of service as criteria for promotion is not in itself discriminatory. Normally service is regarded as synonymous with experience, which can be seen as an objective factor in determining suitability for promotion.In Helga Nimz v Freie and Hansestadt Hamburg.  ECR I-297the ECJ stated the position thus:
- Although experience goes hand in hand with length of service, and experience enables the worker in principle to improve performance of the tasks allotted to him, the objectivity of such a criterion depends on all the circumstances in a particular case, and in particular on the relationship between the nature of the work performed and the experience gained from the performance of that work upon completion of a certain number of working hours. However, it is a matter for the national court, which alone is competent to evaluate the facts, to determine in the light of all the circumstances whether and to what extent a provision in a collective agreement such as that here at issue is based on objectively justified factors unrelated to any discrimination on grounds of sex.
Of further relevance is the fact that in many employments women tend to have shorter service than men. In such cases the use of service as a criteria for promotion can operate to the advantage of men over women. With this in view the Court requested and obtained statistics showing the average length of service of teachers, employed by the VEC, broken down by gender, at September 1998, (the date of the impugned competition). The tables provided show the average length of service for female teachers was 13.68 years while the average for male teachers at the same date was 20.42 years.
While neither party has sought to argue that the use of service as a criterion in the competition is in itself discriminatory, the claimant argued that by using it a second time it did produce a discriminatory effect.
It was submitted on behalf of the VEC that since the claimant benefited by the use of service as criteria in the competition proper she could not now complain at its use as a tiebreaker. They argued that had service not been taken into account the claimant would have ranked fourth in the competition rather than joint first.
The Court cannot accept this submission. Service accounted for 30% of the marks in the competition. Had it not been used it would probably have been replaced with some other criteria. The Court cannot speculate as to what that other criteria might have been or how it might have affected the final result. Further, as was pointed out by this Court inGleeson, the circumstances of the claimant can only be judged against those of the successful candidate.
The broader question of whether it is discriminatory to use service for the purpose of awarding marks in the overall competition has not been put at issue and the Court makes no finding on that point. However, a distinction can be drawn between the use of service as a criterion together with other factors in the competition proper and the use of service as a tiebreaker in cases where a man and a woman are jointly placed in first place.
In the main competition the members of the selection board did not know what service each candidate had until after they had completed their score sheets. Service was part of the nationally agreed criteria for all similar competitions. It was, however, used in conjunction with other factors and was not in itself determinative of who would get the job.
Decision of the selection Board.
There were no guidelines available to the selection board on what they should do when faced with a tie between candidates. It appears that it was a matter entirely for them to decide how they should proceed. They could have recommended that a second selection board be appointed to decide between the two candidates. They were equally entitled to proceed as they did and adopt a tiebreaker against which each of the candidates would be tested. It was imperative at that stage that the determinative criteria selected should be objective and free from any prejudice against members of one gender over the other.
In opting for service as the tiebreaker the selection board adopted a factor which was more likely to advantage a man than a woman. They were also compounding any unfairness which may have resulted from the use of service as a criteria in the competition proper. Critically, they did so in the certain knowledge that it would result in the man being appointed over the woman.
The Burden of Proof.
The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2000 provides that where facts are established from which it may be presumed that discrimination occurred, it is for the respondent to prove the absence of discrimination. The Court is satisfied that such facts have been established in the manner in which the final decision was taken to appoint the successful candidate over the claimant. Moreover, in the context of what occurred, the absence of gender balance amongst the members of the interview board is also a relevant consideration. There is, therefore, a probative burden on the VEC to establish on the balance of probabilities that the claimant was not discriminated against on the basis of her gender. That burden has not been discharged.
Accordingly the Court is satisfied that the claimant did suffer indirect discrimination on grounds of her gender in the manner in which the VEC failed to appoint her to the post of Assistant Principal at Milford Vocational School. Further, there is no evidence on which the Court could conclude that the method chosen to make the final selection was appropriate and necessary and justifiable on objective grounds unrelated to gender.
The Court determines that Josephine Riney, the claimant herein, was discriminated against by Donegal Vocational Educational Committee on the basis of her sex in terms of Section 2(a) and 2(c) and in contravention of the provisions of Section 3 of the Employment Equality Act, 1977.
The Court further determines that the redress recommended by the Equality Officer is appropriate in all the circumstances and should be implemented by the VEC except that the award of compensation recommended be increased to €10,000 to take account of the efflux of time since the hearing before the Equality Officer.
The appeal herein is disallowed.
Signed on behalf of the Labour Court
20th November, 2002______________________
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.