Ms Edel Byrne
(Represented by SIPTU)
Gorey Credit Union
(Represented by IBEC)
The dispute concerns a complaint that Gorey Credit Union discriminated against the complainant on the gender and family status grounds contrary to the provisions of the Employment Equality Acts, 1998 and 2004 (referred to here as the Act).
2.1 The complainant was employed with the respondent as an Acting Assistant Credit Controller when a promotional post of Assistant Staff Officer became vacant. She applied for the position but was unsuccessful. The complainant was pregnant at the time and believes that she was not selected for appointment because she was pregnant.
2.2 The complainant referred a complaint to the Director of the Equality Tribunal on 16th September, 2004. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to an Equality Officer, for investigation, hearing and decision on 1st July, 2005 and for the exercise of other relevant functions of the Director under Part VII of the Act. The Equality Officer to whom the complaint had been delegated requested, for personal reasons, that the complaint be delegated to another Equality Officer and the Director delegated the complaint to Raymund Walsh on 31st January, 2006. A hearing of the complaint was held on 15th March, 2006. Arising from that hearing additional material was provided by the respondent and a further hearing was held on 21st June, 2006.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant commenced employment with the respondent in May, 2000 as a Clerical Officer and was appointed Acting Assistant Credit Controller in February, 2003. In July, 2003 the post of Assistant Staff Officer was advertised and three members of staff were eligible. The complainant and a colleague objected to the competition on that occasion as it represented a departure from the established custom and practice of seniority based appointment and did not apply. The union states that no appointment was made at that time. A competition was re-advertised in April, 2004 for two vacancies and the complainant was one of three applicants. The union states that the complainant was well qualified for the position having completed the Qualified Financial Adviser diploma and had served in the position in an acting capacity and states that one of the other (successful) candidates had not completed the requisite training for the post at the time of application. The complainant, who was pregnant at this time, was unsuccessful in the competition. The union states that it received no response from the respondent to a request for the interview notes.
3.2 The union states that a further promotional post of Loan Officer was advertised internally while the complainant was on maternity leave and she only heard of the competition indirectly. She raised the matter with the Manager and was called to interview two weeks after the birth of her child (after the referral of the initial complaint to the Equality Tribunal). She had to re-arrange this interview for a later date as she was not feeling well enough to attend. Of the two applicants for the post the other more senior candidate was appointed. The union makes the case that promotional appointments were made both before and after the complainant's pregnancy but only when the complainant was a candidate were interviews held. The union goes on to say that the interview did not involve any skills related questioning and suggests that it was simply a mechanism for excluding the complainant because she was pregnant.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent stated that following serious internal difficulties, an independent review of its procedures carried out under the auspices of the Irish League of Credit Unions in April, 2003 led to several changes in its policies and procedures, including a decision that seniority would no longer automatically qualify a person for promotion. In future the Employment Sub Committee of the Credit Union would recommend to the Board a selection process for each vacancy as it arose. That was the background to the introduction of interview based selection for Assistant Staff Officer vacancies.
4.2 The respondent rejects the suggestion that it would discriminate on gender or family status grounds and points out that all but two of its 26 staff are female, all of the candidates in the two competitions referred to were female and the interview panels comprised either all or mainly female members. The respondent states that the complainant was herself facilitated when she applied for parental leave in 2002.
4.3 In relation to the Assistant Staff Officer interviews (3 candidates) held on 9th June, 2004 and the Loan Officer interviews (2 candidates) held on 11th November, 2004, the respondent provided copies of the interview board's list of questions, marking sheets and the interview boards' comments on the candidates. In the June interviews the notes state in relation to the complainant 'not very good on identifying key areas of the job..' and 'not very forthcoming with answers - yes or no answers - no elaboration' and the complainant was marked lowest of the three candidates. In the November interviews the successful candidate scored considerably higher than the complainant and the notes state that her communication was poor and that it was 'impossible to establish actual knowledge as answers merely yes/no type'.
4.4 The respondent states that its failure to notify the complainant of the Loan Officer vacancy while she was on maternity leave was due to an oversight and that when it was brought to its attention it extended the closing date for applications and facilitated her when she was unable to attend for interview on the first scheduled date due to illness. The respondent also states that the competition to appoint an Assistant Staff Officer in 2003 to which the union refers did not proceed pending clarification in relation to the appointment of an Assistant Manager.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus (1) found that pregnancy is a uniquely female condition and that where a woman experiences unfavorable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive (2). The complainant in the present instance alleges discriminatory treatment on both the gender and family status grounds. The successful candidates in the disputed competitions were all female and the complainant's case is that she was treated differently because of her pregnancy and family status. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 The union is making the case that the competition of April, 2004 was the first time that interviews were held instead of seniority based selection and that the interviews were held as a mechanism for excluding the complainant who was pregnant. The respondent has stated that the new selection procedures were introduced following an independent review of its procedures by the ILCU. It is clear from the union's own evidence, that interview based selection was first proposed in July, 2003, before the complainant became pregnant and that staff were reluctant to co-operate with the new procedures. I note the respondent's comment that that competition did not in any event go ahead at the time as it was waiting to clarify the position in relation to an Assistant Manager vacancy. I regard the union argument that the introduction of interview based selection was in some way connected with the complainant's pregnancy as unfounded.
5.3 I have examined the interview notes and marks awarded to the candidates in each of the two competitions and while I have noted reservations expressed by the union in relation to the notes supplied, I am satisfied on balance that the respondent had objective reasons unconnected with the complainant's pregnancy or family status in awarding the appointees higher marks at interview than the complainant. Having regard to all of the evidence presented I consider that the complainant has failed to adduce prima facie evidence that she was subjected to unfavourable treatment arising from her pregnancy or family status.
6.1 On the basis of the foregoing, I find that the respondent did not discriminate against the complainant in terms of Section 6(2)(a) or 6(2)(c) of the Employment Equality Acts, 1998 and 2004 contrary to the provisions of Section 8 of the Act.
10 October, 2006
(1) Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus ECJ C-177/88  ECR I-3941
(2) Council Directive 76/207/EEC