SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
DIRECTOR OF PUBLIC PROSECUTIONS
(REPRESENTED BY MAURICE COLLINS S.C., INSTRUCTED BY ARTHUR COX, SOLICITORS)
- AND -
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Appeal against Decision of the Director of Equality Investigations DEC-E2002-047.
2. The background to this case is set out in Equality Officer's Decision DEC-E2002-47. The Equality Officer, in her Decision which was issued on the 30th October, 2002, found that the Director of Public Prosecutions (DPP) did not discriminate against the claimant on the grounds of age or gender, contrary to the provisions of the Employment Equality Act, 1998, when he was unsuccessful in a competition for appointment to the position of Solicitor to the DPP.
On the 29th November, 2002 the complainant appealed the Decision to the Labour Court. The grounds of appeal are as follows:
1.The Equality Officer erred in law and in fact in finding that the respondent did not discriminate against the appellant contrary to the provisions of the Employment Equality Act, 1998.
2.The Equality Officer erred in law and in fact in not awarding an appropriate remedy to the appellant for the discrimination experienced by him and the consequent distress to him.
3.On all grounds submitted during the Equality Officer's investigation and such grounds as may arise during the course of the appeal.
The Court heard the appeal on the 28th September, 2004.
Mr Robert Sheehan (hereafter the complainant) claims that he was discriminated against on grounds of his gender and his age in not being appointed to the post of Solicitor to the Director of Public Prosecutions. The disputed post was newly created following a decision to merge the criminal section of the office of the Chief State Solicitor with the Office of the Director of Public Prosecutions (hereafter the respondent). The post was advertised by the respondent in July, 2000, and was to be filled by way of confined competition. A Board was constituted to interview candidates and to recommend a person for appointment. This consisted of five members as follows:
- The Director of Public Prosecutions;
The Deputy Director of Public Prosecutions;
Two Solicitors in independent practice
A senior civil servant nominated by the Top Level Appointments Committee.
A number of candidates applied for the post and were interviewed by the Board. A woman was appointed who was younger than the complainant.
The complainant brought these proceedings against the respondent by way of a complaint to the Director of Equality Investigations pursuant to Section 77 of the Employment Equality Act 1998.
An Equality Officer who investigated the complaint held against the complainant. The complainant appealed against that decision to this Court.
The Court received extensive submissions from the parties on the issues of fact and law arising in the case which were supported by the testimony of the complainant and witnesses called by the respondent.
The Complainant’s Case.
The following is a summary of the complainant case.
The complainant is a Solicitor of some twenty years standing. He was born in the year 1955. He claims that his qualifications for the disputed post are significantly superior to those of the successful candidate. Specifically, the complainant told the Court that he has extensive experience in the prosecution of crime on indictment whereas the successful candidate has negligible experience in this field. The complainant also contended that he had demonstrated strong management, professional and advocacy skills over a long career in both the public and private sectors. He told the Court that he is longer qualified than the successful candidate and has vastly more experience in the practice of criminal law.
The complainant stated in evidence that when the job specification for the disputed post was first drafted it specified that applicants would be required to have ten years' post qualification professional experience. This was later changed to seven years' post qualification experience. The complainant was a solicitor of more than ten years standing whereas the successful candidate was not. Thus, he claimed, the reduction in the post qualification requirement facilitated the successful candidate who would otherwise have been ineligible to apply for the post.
The complainant further claimed that, prior to the competition, the respondent had expressed the opinion that the disputed post would be filled by a mid-ranking Solicitor in the Office of the Chief State Solicitor, a description fitting the successful candidate’s professional background.
The complainant submitted that the selection process in his case was tainted by unfairness. Specifically, he claimed that there was personal enmity between himself and the Deputy DPP arising from a professional incident some years previously. On this account, the complainant had expressly requested the respondent not to appoint this Officer to the selection panel. Despite the complainant’s objections, the respondent appointed the Deputy DPP to the panel.
In the course of his interview, a member of the panel put it to the complainant that he had “a short fuse” and invited him to comment on whether this would be a negative factor in his suitability for the post. This woman is an eminent Solicitor in private practice and was acquainted with the complainant personally. The complainant contends that this question disparaged him personally and professionally in the minds of the other members of the panel.
The complainant submitted that the evidence in this case established that he was the most qualified applicant for the disputed post, and that on a fair assessment he would have been appointed. He suggested that as a matter of policy, public service employers were encouraged to appoint women to senior posts. He submitted that this consideration influenced the selection process and resulted in him being passed over in favour of a less qualified and younger woman. The complainant further asserted that the respondent desired to control the solicitor appointed to the disputed post and that this consideration also influenced the appointment of a young and relatively inexperienced solicitor. The complainant told the Court that both the respondent and the Deputy DPP knew that had he been appointed he would have acted on a professional basis without fear or favour. While he would have reported to the office of the respondent he would not have been controlled by that office.
The marking sheets used by the interview panel in the competition were opened to the Court, and the complainant referred to the relative markings awarded to him and the successful candidate. He submitted that under each heading his experience and qualifications were significantly superior to those of the successful candidate, and on a fair and objective assessment she could not have been regarded as a better candidate.
The Respondent’s Case
The following is a summary of the respondent’s case.
In his submission, the respondent told the Court that the disputed post was open to applicants serving in a legal grade in the civil service equivalent to the rank of Principal Officer or higher who had practised as a solicitor in the state for at least seven years. In addition, candidates were required to have the following qualities:
•Exceptional management and organisational ability,
•Be active and innovative,
•Have demonstrated an ability to lead and manage change,
•Have an ability to manage and motivate staff undertaking the full range of services demanded by the prosecution system,
•Have the requisite knowledge and ability to be able to discharge all the duties of the position.
An interview board was constituted to interview candidates for the disputed post. A number of candidates – both men and women of varying ages- applied for the post and were interviewed. The board regarded the complainant as an outstanding candidate but, nonetheless, by a very narrow margin, the board selected another candidate ahead of him. The respondent denied that the process of selection was in any way tainted by discrimination.
The respondent said that the interviews were conducted by way of each member of the Board asking questions of the candidates and, thereafter, the Board made an assessment of the candidate. The Board would then agree a mark for the candidate out of 100 under each of the headings listed on the interview rating form, namely, knowledge and experience of value, ability to provide leadership and management skills, vision and ability to think strategically and personal skills. Detailed interview notes were not retained as this was not the normal practice at the material time.
The respondent pointed out that the Board awarded the complainant the highest mark of any candidate under the heading of knowledge and experience of value, reflecting his impressive work experience. This was, however, only one factor which the board had to consider. They also had to consider the other headings, based on the candidates' curriculum vitae and their performance at interview. The successful candidate was rated ahead of the complainant in respect of ability to provide leadership and management skills and personal skills. In consequence, the successful candidate finished ahead of the complainant, albeit by a small margin.
Evidence was received from each member of the interview board who testified as to how the competition was conducted and the basis upon which the successful candidate was selected. They each told the Court that the decision to recommend a candidate other than the complainant was based solely on their assessment of the candidates’ respective merits.
The Court was told by the member of the Board nominated by TLAC that the practice of not retaining interview notes was widespread in the public service at the material time. This witness gave evidence that there was noting untoward in the failure of the Board to retain these notes in the impugned competition.
In his evidence, the respondent told the Court that he was aware of a circular having been issued by the Department of Finance encouraging the appointment of women to senior posts in the public service. He said that this had not influenced his approach to the competition and that his sole concern was to have the most suitable candidate appointed. The respondent said that it was envisaged that the successful candidate would fulfil a management role and would require strong management skills. The witness was of the view that the complainant did not fully appreciate the importance of this aspect of the post.
The member of the Board who commented on the complainant’s allegedly short fuse told the Court in her evidence that she had raised the matter in the context of a new office and a new administration. This witness said that she had no doubt about the complainant’s ability as a lawyer but had some concerns about his patience with others. She said that the purpose of the question was to provide the complainant with an opportunity to address this issue and that he had done commendably and had assuaged any concerns which she had. It was put to the witness in cross-examination that the question had reflected adversely on the complainant and was calculated to discredit him amongst the other members of the Board. The witness said that in her opinion the complainant had derived significant credit from the manner in which he dealt with the question. Other members of the Board who gave evidence also testified in similar terms as to the effect of the complainant’s response to this question.
In his evidence, the Deputy DPP denied that he was ill disposed to the complainant either personally or professionally. He told the Court that he participated in the selection with an open mind and assessed the candidates on the criteria set out on the assessment sheet. The witness agreed with other members of the Board that the complainant was an outstanding candidate for the post. However, in the opinion of the Board, the successful candidate had surpassed him by a small margin and he agreed with this assessment.
The final member of the Board to give evidence was a Solicitor in private practice specialising in criminal law. This witness was familiar with the complainant professionally and held him in high regard. This witness told the Court that he rated the complainant ahead of all other candidates in the competition. However, the majority did not share his assessment. The witness did not perceive any element of bias on the part of the members of the Board towards any candidate. He regarded the process of selection has having been fairly and objectively conducted.
The Court has carefully considered all of the evidence adduced before it, the salient points of which are summarised above. It has also taken account of the detailed written submissions presented and of the several authorities opened to it by both parties.
The Court must first consider if, on the facts proved or admitted, the probative burden in this case can be shifted to the respondent. Formerly, the circumstances in which this burden shifted were prescribed by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001. The relevant procedural rule is now contained at section 85A of the Act as amended by the Equality Act 2004. No issue was taken as to the applicability of this rule to this complaint as it relates to either the gender or the age ground.
This section provides as follows:
- “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”
In applying this procedural rule it is for the complainant to prove, on the balance of probabilities, the primary facts on which he relies in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove there was no infringement of the principle of equal treatment. (seeMitchell v Southern Health Board  ELR 201).
In order to shift the probative burden it is not necessary for the complainant to adduce direct evidence of discrimination on either the gender or the age ground. As was pointed out by Neill LJ inKing v Great Britain China Centre  I.C.R. 516such evidence will seldom be available since those who discriminate rarely do so overtly and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found by the Court. This dictum was later adopted by the House of Lords inGlasgow City Council v Zafar  2 All ER 953.In this jurisdiction it was adopted by the High Court inDavis v Dublin Institute of Technology High Court, Unreported Quirke J 23rd June 2000The underlying rationale of this approach was explained by this Court inCitibank v Massinde Ntoko 15 E.L.R. 116Here the Court stated as follows:-
"This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof".
What the complainant must establish is a factual matrix from which the Court may properly draw an inference that discrimination has occurred. There is no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies. However, an inference of discrimination can arise where, for example, a less qualified man is appointed in preference to a more qualified woman (Wallace v. South Eastern Education and Library Board IRLR 193). It can also arise from a unexplained procedural unfairness in the selection process.
The complainant contends that his qualifications for the disputed post are demonstrably superior to those of the successful candidate. He further contends that there was a lack of transparency and general unfairness in the selection process. These are facts which he must prove on the evidence. If he fails to discharge that burden his case cannot succeed.
In the present case, the responsibility for assessing the merits of the candidates for the disputed post was deputed to a selection board consisting of members whose qualification for the task assigned to them is beyond question. In these circumstances, and in the absence of evidence of unfairness in the selection process or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the selection board.
In contending that there was unfairness in the selection process, the complainant has relied principally upon the following:
•The lowering of the post qualification requirement from ten years to seven years
•What he regards as the derogatory question put to him suggesting that he had a “short fuse”,
•The presence on the Board of the Deputy DPP who was ill disposed to him,
•The failure of the Board to retain contemporaneous notes of the interview
Moreover, the complainant has maintained that having regard to his superior qualifications and experience for the post, the outcome of the competition was irrational.
The Court heard evidence from each of the members of that Board who were subjected to probing and skilful cross-examination by the complainant. Having considered this evidence, together with that of the complainant, the Court cannot accept that the selection process was tainted by unfairness to a degree which would imply discrimination.
In particular, the Court accepts that the decision of the respondent to specify a post qualification requirement of seven years was made bona fide and was in line with the requirement for similar professional posts in the public service. The Court is further satisfied that whilst it was unfortunate that the question to which the complainant took exception was put to him at interview, it did not operate to his detriment. Rather, each member of the Board told the Court, and the Court accepts, that the manner in which the complainant responded to this question was held to his credit.
The complainant believed that the Deputy DPP held a personal grievance against him. In evidence, the Deputy DPP denied that this was the case. Without so finding, if the complainant was correct in this belief it could not avail him in advancing his claim herein. The complainant suggests that the alleged animosity towards him was personal and related to a professional incident some years previously. On his own evidence it had nothing to do with his gender or his age. Consequently, it could not be regarded by the Court as a fact from which an inference of discrimination on either ground could be drawn.
Based on their testimony, the Court accepts that whilst the complainant was, by common accord, an outstanding candidate who would have filled the disputed post with distinction, the Board concluded by a very narrow margin that another candidate was more suitable for appointment. The Court cannot find a scintilla of evidence to suggest that the process was conducted other than fairly and by the application of objective and appropriate criteria, or was in any way tainted by discrimination.
The Court also regards the failure of the Board to retain contemporaneous notes of interview as regrettable. This is a practice which has been adversely commented upon by the Court on many occasions and it can operate to the determent of a respondent where it deprives the Court of the opportunity to adequately assess the basis upon which an impugned decision was reached. (See decision of this Court inDetermination 039, Martha McGinn v Daughters of Charity (unreported 12th August 2003). In this case, the Court was told by the member of the Board appointed by TLAC that at the material time it was common practice not to retain notes after the interview process was completed. He said that the practice has since been reversed. The Court accepts this practice was common at the time and in these circumstances it does not consider the failure to retain the interview notes as of sufficient significance to raise an inference of discrimination in the selection process.
Finally, he Court has considered the complainant’s contention that the decision of the Board was irrational. The Court accepts that whilst the complainant was, by common accord, an outstanding candidate who would have filled the disputed post with distinction, the Board concluded by a very narrow margin that another candidate was more suitable for appointment. As the Court has been unable to find any material unfairness or departure from good practice in the selection process, there is no basis upon which it could conclude that the decision of the Board not to appoint the complainant was irrational.
Having regard to the foregoing, the Court finds that the complainant has failed to prove facts from which discrimination may be inferred. Accordingly, he cannot succeed in this appeal. It is the determination of the Court that the appeal herein be dismissed and that the decision of the Equality Officer be affirmed.
Signed on behalf of the Labour Court
14th December, 2004______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.