(Represented by Sile O'Kelly BL, on the instructions of Noel Smyth & Partners, Solicitors)
Health Service Executive West
(Represented by Ercus Stewart SC, on the instructions of William B Glynn, Solicitors)
1.1 This dispute concerns a claim by Dr Padraig Sheeran that he was discriminated against by the Health Service Executive West on the ground of marital status, contrary to the provisions of the Employment Equality Acts 1998 to 2007, when he was unsuccessful in his application for the position of consultant anaesthetist.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 10 January 2005 under the Employment Equality Acts 1998 to 2007. In accordance with her powers under section 75 of the Acts, the Director then delegated the case on 13 June 2006 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought from the parties, and a joint hearing was held on 22 June 2007. Subsequent correspondence concluded on 20 August 2007.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant says he attended for interview in October 1999 for the post of consultant anaesthetist in University College Hospital Galway (UCHG). He says he was not happy with the conduct of the interview generally, but had a particular problem with one question he was asked. He says the question related to a matter regarding which his wife (also a consultant anaesthetist) was in dispute with nursing management at the time. He says that this was an inappropriate question to ask him in the circumstances. The complainant says also that the marks he was awarded were significantly lower than marks he received in another interview just three weeks previously.
2.2 The complainant made a further application for the post of consultant anaesthetist in July 2004. He says he was unable to get straight answers from the interview board regarding the job profile and skill mix being sought. He says that on this occasion he was placed third on a panel, and that the panel was suddenly closed after the appointment of the second placed candidate. The complainant says he subsequently applied for a locum position, but that the post was filled without interviews being held.
2.3 The complainant claims that a member of the anaesthetic department at UCHG, who was also a member of both interview boards, had on a number of occasions indicated that he did not want a husband and wife working in the same department. The complainant says that the combination of two bizarre interviews, the closing of a panel when he would be the next appointee and the failure to follow due process in filling the locum position is evidence of discrimination against him on the ground of marital status.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that it discriminated against the complainant and points out that the 1999 interviews are outside the time limits prescribed by the Acts. The respondent submits that it was not directly involved in the selection processes which are the subject of this complaint and therefore cannot respond directly to the complaint. The respondent says that senior posts in the public service, such as the one at issue in this complaint, were filled by the Local Appointments Commission. Following the enactment of the Public Service Management (Recruitment and Appointments) Act 2004, the Commission was replaced by the Public Appointments Service (PAS).
3.2 The respondent says the Commission was specifically set up to create independence in respect of filling public positions by way of a separate interview process over which the body requesting or requiring the appointment would have no control. It says it filled the post on the basis of a recommendation from the PAS but had no control over the manner in which the selection process was conducted. The respondent submitted a response from the PAS confirming that the process had been carried out in accordance with correct procedures.
3.3 Notwithstanding the above position, the respondent denies that the complainant's marital status had any bearing on the matter. It denies that a member of the interview board held or expressed the opinion that married couples should not work together. The respondent says a number of departments in UCHG contain a husband and wife, and says it is simply not an issue for the hospital.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the ground of marital status contrary to the provisions of the Employment Equality Acts 1998 to 2007. Section 6 of the Acts states
(1)For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where-
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the discriminatory grounds)...
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are-
...(b) that they are of different marital status (in this Act referred to as "the marital status ground")...
4.3 Marital status is defined in section 2 of the Acts as meaning single, married, separated, divorced or widowed. It will be seen that there must be a difference in marital status between two persons before a claim of less favourable treatment on that ground can be maintained. At the hearing of the complaint, I asked the complainant to clarify the marital status of those people who were successful in obtaining the posts he applied for, and he confirmed that each of them was married. Accordingly, they had the same marital status as the complainant.
4.4 The law relating to the issue of a presumption of discrimination or the drawing of an inference of discrimination was authoritatively considered by Quirke J in Davis v Dublin Institute of Technology (High Court, 2000, unreported). That case was an appeal to the High Court on a point of law from a Labour Court determination of a complaint of sex discrimination taken under the Employment Equality Act 1977. The judge concluded "In cases where discrimination on grounds of sex is alleged to have occurred contrary to the provisions of section 2 (a) of the 1977 Act the fact that there is a gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation...A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidates "together with" a gender difference may give rise to such a requirement..."
In the same way, a difference in marital status cannot in itself be enough to prove discriminatory treatment, but a failure to establish such a difference must prove fatal to the assertion of discrimination. I am satisfied that the complainant cannot establish a prima facie case of discrimination.
4.5 It was submitted on behalf of the complainant that discrimination based on marital status is no less real in a situation where the discrimination is based on the identity of the marital partner rather than on the fact of marriage itself. It was submitted that indirect discrimination clearly arises by virtue of the complainant's particular marital status, ie being married to someone in the same department.
4.6 It is possible that a ban on the employment of married couples within a department could be found to be indirectly discriminatory, in that it could be an apparently neutral provision putting married persons at a particular disadvantage compared with their single, separated, divorced or widowed colleagues. However, the complainant did not adduce any evidence whatever of the existence of such a policy. He claimed that a member of the interview board had told third parties that he would not employ married couples, but that member attended the hearing of the complainant and emphatically denied that he had ever made such comments. I find that the complainant has failed to establish a prima facie case of indirect discrimination.
4.7 In the circumstances, I do not consider it necessary to deal further with the respondent's arguments that the recruitment process had been carried out by the PAS.
5.1 Based on the foregoing, I find that the respondent did not discriminate against the complainant, directly or indirectly, contrary to the provisions of the Employment Equality Acts 1998 to 2007.
11 September 2007