SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Appeal against Equality Officers Recommendation Dec-E2002-002.
2. A Labour Court hearing took place on the 10th December, 2004. Both parties made written and oral submissions to the Court. The following is the Court's Determination:
Mr Gerry Kirwan (the complainant) claims that he was discriminated against by Tesco Ireland (the respondent) by the manner which he was treated in a competition to fill the post of senior person, at the Delicatessen Department of the respondent's Artane branch. A woman was appointed to the disputed position. The complainant's claim of discrimination was investigated by an Equality Officer pursuant to the Employment Equality act, 1977. The Equality Officer found against the complainant. He then appealed to this Court.
The background to the dispute is fully and accurately set out in the Recommendation of the Equality Officer.
Position of the Parties
In summary, the complainant's case is that he was better qualified than the successful candidate and that the markings awarded to him in the competition were unfair and bore no relation to his qualifications and suitability for the disputed post. He claims that the only creditable explanation for the respondent's decision to prefer the successful candidate was that she was a woman. The claimant presented an extensive written submission which particularised the basis for his complaint.
The complainant contends that he has better educational achievements than the successful candidate. He is also a graduate of the College of Marketing and Design. The complainant referred to the various qualities on which marks were awarded in the competition and claimed that he was unfairly marked under various headings. The complainant told the Court that he was subsequently appointed to a similar post and that this confirmed his suitability for the post at issue.
The respondent denies that the complainant was discriminated on grounds of his gender or at all. They say that the store manager and the regional fresh food trainer interviewed the complainant together with the successful candidate with the respondent in October, 1997. They say that the interview notes cannot now be located. They say that marks were awarded based on the criteria agreed prior to the interview. The complainant scored 25 marks and the successful candidate scored 23 marks. It later transpired that an error was made in adding up the complainant's score and he should have been awarded 26 marks.
The second phase of the selection process was that the Deli Manager assessed the performance of the candidates to date and awarded marks based on criteria decided by the Store Manager. This, they say, was to take into account that not all people performed well at interview. Following this process the successful candidate had accumulated a score of 42 and the complainant's score was 39. The final phase in the process was that the Store Manager reviewed the assessment sheet having regard to his own knowledge of the candidates and on this basis the successful candidate emerged with a final score of 65 while the complainant scored 64.
It is the respondent's case that the decision to appoint the successful candidate was taken by the Store Manager based on the assessments from the interview, assessment by the Deli Manager and finally assessment by the Store Manager. The respondents say the decision was taken on the basis of suitability of the candidates and was not in any way related to their gender.
Conclusions of the Court:
The Court has given careful consideration to all the submissions and evidence adduced. In his investigation of the dispute the Equality Officer took the view that, on the basis of the complainant's superior qualifications, a prima facie case of discrimination had been made out. The Court concurs with this conclusion. Moreover, the Court is of the view the selection process used by the respondent in this case did not conform to the standard of best practice. Specifically, the use of assessments outside the interviews was lacking in transparency and the Court cannot discount the possibility that subjective considerations might have entered into the process. The failure of the respondent to retain interview notes constitutes a further departure from best practice which, combined with the other elements of the case, is supportive of the conclusion that a prima facie case of discrimination has been made out.
Accordingly, the Court has proceeded on the basis that the onus of proving that there was no infringement of the principle of equal treatment rests with the respondent.
The Court notes that at the material time the majority of entry level posts within the respondent overall (Shop Assistant grades) were held by women. However, the majority of promotional posts were held by men. This does not indicate a bias in favour of women in the filling of promotional posts. Moreover, the Court has given careful consideration to the evidence given on behalf of the respondent concerning the basis for the selection of the successful candidate. Notwithstanding the complainant's superior qualifications and the error in calculating the marks awarded to the complainant, the Court accepts that the reason for appointing the successful candidate was because she was regarded as the better candidate by the Store Manager. The Court is further satisfied that this decision was not influenced by the gender of either candidate. In that regard the Court notes that the previous occupant of the post was a man and that the complainant was later appointed to a similar post.
On the evidence the Court is satisfied that the respondent has discharged the onus of proof which it bears. Accordingly, the Court accepts that the failure of the respondent to appoint the complainant to the disputed post was unrelated to his gender.
For the reasons set out above the Court affirms the decision of the Equality Officer and the appeal is disallowed.
Signed on behalf of the Labour Court
23rd December, 2004______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.