Merchants Quay Ireland
1.1. The case concerns a claim by Ms Miriam Kane that Merchant’s Quay Ireland Ltd, discriminated against her on the ground of gender contrary to Sections 6(2)(a) of the Employment Equality Acts 1998 to 2004, in access to promotion pursuant to S. 8(1)(d) of the Acts. The complainant further claims that apart from not achieving promotion within the respondent organisation, she was also victimised pursuant to S. 74(2), because she herself complained, and supported complaints made by colleagues, about the behaviour of a particular manager within the respondent organisation.
2.1. The complainant submits that she repeatedly failed to achieve promotion within the respondent organisation. She participated in competitions for various management-level roles in June 2000, September 2000, February 2003, and September 2004, but did not succeed in any of her attempts. The complainant alleges that this lack of success is gender-related and that there is evidence of a predominance of males in management and leadership roles in the organisation. The complainant further submits that one reason she was unsuccessful was that she complained to management, and supported colleagues of hers in their complaints, about the bullying and harassing behaviour of one particular male manager. The complainant submits that this worked against her in her attempts to secure promotion, and amounts to victimisatory adverse treatment.
2.2. The respondent denies discrimination of the complainant on grounds of gender, and general organisational bias against women in leadership positions. The respondent submits that two of the disputed posts were filled by women, one by a man, and one went unfilled. Furthermore, the respondent submits that between 1998 and 2008, 52% of management positions have been filled by women, and that the complainant herself was promoted twice in five years – to Senior Project Worker in 2000 and to Team Leader in 2005.
2.3. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on7 March 2005. On 17 November 2006, in accordance with her powers under S. 75 of the Acts, the Director delegated the case 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. A submission was received from the complainant on 31 October 2006. A submission was received from the respondent on 22 December 2006. On 13 August 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, 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. A preliminary hearing was held on 25 October 2007, to clarify the scope of the case. Fresh submissions were requested from both parties and were received from the complainant on 6 December 2007, and from the respondent on 21 January 2008. A joint hearing of the claim was held on 19 February 2008. The last piece of correspondence relating to the complaint was received on 25 February 2008.
Summary of the Complainant’s Written Submission
3.1. The complainant submits that in a series of interview processes, she failed to achieve promotion to a leadership role in the respondent organisation. She submits that these manifest a disposition of the respondent to discriminate against her in access to promotion from 2000 to 2004.
3.2. The complainant submits that between June and July 2000, the respondent ran a competition for Facility Leader (Integration/Resettlement). Initially, no appointment was made, and the post was re-advertised in July 2001. The successful candidate was an internal male. The complainant was informed that she was second on the interview panel.
3.3. The complainant submits that between September and November 2000, the respondent ran a competition for Training Manager. Again, the post was not filled initially, and the following year, a female candidate was appointed. Again the complainant was informed she was second on the interview panel. The complainant submits that she asked two members of the interview board for feedback, to address her development needs, if any. The complainant also submits that she expressed her disappointment over her lack of success to the interview board in terms of that an appointment to the position would have removed her from alleged mistreatment by her superior.
3.4. The complainant submits that between February and September 2003, the respondent ran a competition for Team Leader (Stabilisation), a position that went ultimately unfilled. The complainant submits that the delays in the process, and the stop-and-start manner in which the interviews in particular were conducted, were very unsatisfactory.
3.5. The complainant further submits that when she was interviewed for the position, the supervisor about whom she had made complaints to management was on the interview board. She submits that this supervisor asked her a number of inappropriate, unsettling and discriminatory questions. She submits these concerned her family life, whether she “had any ambition”, and why she had included non-work related subject matters on her cv. She submits that this process was compounded by the fact that it was this supervisor who was chosen to provide her with feedback on her interview. She submits that the feedback session descended into a deconstruction of the personal traits of the complainant, and what she perceived as threats from the supervisor, that he “had concerns” for the claimant, and that these would be “issues for supervision”. She submits that this meant she would be subject to ongoing criticism during one-to-one and group sessions.
3.6. The complainant submits that in September 2004, the respondent ran a competition for Stabilisation, Settlement and Integration Services Manager. A male candidate was appointed. The complainant submits that when she asked the respondent’s CEO for her interview scores, he responded that it was not company policy to supply them and that it could be invidious to both a female senior manager and himself.
3.7. The complainant submits that the aim of the position was advertised as managing progression through treatment, settlement, employment and social integration and that the advertisement for the position requested the following experience: a minimum of two years working at management level; three years of experience in the area of drugs/homelessness; a qualification in the area of social care management; and experience of change management processes.
3.8. The complainant submits that in all her previous posts, she has identified, developed and implemented programmes that progress and integrate individuals into the mainstream and away from addictive and offending behaviour. She submits that in contrast, the successful candidate’s experience was mostly in crisis services.
3.9. Regarding the minimum of two year’s experience of working at management level, the complainant submits that she worked in various management roles for the Apex Trust (London) from 1989 to 1991, and managed a programme for the rehabilitation of female offenders from 1994-1996. She submits that in contrast, the successful candidate had two years’ experience as a team leader with the respondent organisation.
3.10. In terms of the qualification in the area of social care management requested for the position by the respondent, the complainant submits that her academic qualifications include a business administration qualification from BTEC (1986); an Adult Trainers Award from UK City & Guilds (1989); a Training and Development Certificate from the Chartered Institute of Personnel and Development (1990); a Certificate in Professional Management from the Open University Business School (2000); and licentiate membership in the Chartered Institute for Personnel and Development. She further submits that in 2000, she also obtained a Certification in Clinical Supervision from the respondent organisation.
3.11. She submits that the successful candidate holds a Diploma in Addiction Studies from TrinityCollege(2001) and a Certificate in Counselling skills (2000). Like the complainant, the successful candidate also obtained a Certification in Clinical Supervision in 2000, from the respondent organisation.
3.12. The complainant submits that her previous managerial positions (see para 3.9 above) would have given her ample experience in change management processes. She submits that in contrast, the successful candidate would only have implemented change, rather than managed it, as a team leader with the respondent.
3.13. The complainant further submits that in her view, victimisation played a part in her adverse treatment with regard to access to promotion within the respondent organisation.
3.14. In this regard, she submits that she made various complaints to the respondent with regard to mistreatment of a group of female staff by one male supervisor. She submits that she made those complaints between summer 2003 and May/June 2004. She submits that she complained to the supervisor in question directly, and also to a female senior manager of the respondent’s. However, apart from the her description of her interview and feedback experiences summarised in para 3.5 above, the complainant does not outlined in her submission how the making of complaints about this supervisor contributed to her being denied promotion within the respondent organisation.
Summary of the Respondent’s Written Submission
4.1. The respondent submits that it is a national voluntary agency providing services for homeless people and drug users and their families.
4.2. The respondent denies treating the complainant less favourably on ground of her gender in access to promotion. It submits that two of the posts featuring in the case were filled by females, one was filled by a male and one went unfilled. It further submits that since 2000, 16 males and 25 females commenced employment in leadership roles within the organisation, and that between 1998 and 2008 approximately 52% of management positions have been filled by women. It submits that the complainant herself was promoted twice in five years – to Senior Project Worker in 2000 and to the newly created position of Team Leader in Stabilisation, Settlement and Integration in 2005.
4.3. The respondent submits that the complaint regarding the filling of the Facility Leader in July 2000 is out of time. A female candidate was offered the job initially, but she turned it down and the position was re-advertised. The respondent submits that on that occasion, the complainant did not apply. The successful appointee for the re-advertised job was male.
4.4. The respondent submits that the complaint regarding the filling of the Training Manager post in September 2000 is out of time. The respondent submits that the complainant applied for the position within four months of her most recent promotion. It submits that the position was initially not filled, was re-advertised, and was filled by a woman. The respondent submits that the rationale for the appointment of the successful candidate was the fact that she held a postgraduate qualification that was considered relevant for the position. The respondent submits that since the complainant and the successful candidate were of the same gender, no discrimination on the gender ground arises.
4.5. The respondent submits that the complaint regarding the filling of the Team Leader Stabilisation Service in February 2003 is out of time. The respondent submits that it was decided to offer the complainant a second interview for the position, but that a delay occurred because of difficulties in getting an external interviewer. The respondent submits that the position was never filled, due to restructuring of departments in the organisation.
4.6. The respondent submits that at the material time, the complainant had not made complaints about the supervisor who was a member of the interview board, and that no discriminatory questions were asked of her. The respondent submits that no discrimination on ground of gender could have occurred as the post was never filled.
4.7. The respondent rejects the complainant’s allegation that it was not the organisation’s policy to give the complainant a copy of her interview scores. It submits that the respondent’s CEO had already provided the complainant with her overall score and that when she requested the detailed scores from each interview board member, he replied to her that he would have to think it over. The respondent submits that these detailed scores were subsequently provided to the complainant.
4.8. The respondent in its submission to the Tribunal, disputes the assessment of the qualifications and experience of the successful candidate for the position as given by the complainant. It submits that the successful candidate did have experience in both supervisory management and change management. On the issue of academic qualification (see also paras 3.10 and 3.11 above) that from the perspective of the organisation, neither candidate had the combined qualifications in social care and management that the respondent was looking for in the ideal candidate, and that the respondent was therefore prepared to be flexible in this matter. The respondent submits that on balance, it preferred the successful candidate’s combination of an academic degree in Addiction Studies and his successful completion of the respondent’s own Management Development training programme.
Conclusions of the Equality Officer
The Preliminary Hearing
5.1. As noted in para 2.3 above, a preliminary hearing of the case took place on 25 October 2007. I advised both parties that I would publish the findings of that hearing together with the substantive decision of the complaint, and that their respective rights of appeal were fully preserved.
5.2. Time limits had been in dispute between the parties, as is also evidenced by the summary of the respondent’s written submission. With regard as to whether the complainant’s lack of success in a series of promotion competitions formed part of an ongoing “intention to discriminate” as defined by the Labour Court in Department of Health v. Gillen [ADE/03/15], and whether they were therefore within the time limit of S. 77 of the Acts, I held that based on the complainant’s preliminary submission, these events appeared connected enough on a prima facie basis to investigate them in a full hearing.
5.3. The complainant had also made a complaint regarding harassment by a male supervisor. From her submission, it was clear that the last promotion competition at which she had been unsuccessful, and which was in time as specified by S. 77(5) of the Acts, had been for this supervisor’s position, and that the supervisor referred to had left the respondent organisation some nine months before the filing of the complaint. The representative of the respondent confirmed in oral evidence that the supervisor had left the respondent’s employment on30 June 2004. As the complainant filed her complaint with the Equality Tribunal on 7 March 2005, I find that the complaint regarding harassment by her supervisor was referred outside the time limits established by the Acts.
5.4. In this context, I note that the factual connection should have been obvious to the complainant, as her in-time complaint on lack of access to promotion concerned her supervisor’s position, which meant he had had to have left the respondent organisation previously. I also note that the complainant had the benefit of legal advice from the moment of filing her complaint, which was faxed to the Tribunal from the offices of her solicitors. Still, at no time between 7 March 2005 and the preliminary hearing on 25 October 2007 did the complainant or her representatives seek to make representations to the Director for an extension of time pursuant to S. 77(5)(b) of the Acts. Therefore I find I am bound in this matter by the decision of the Supreme Court in The State (Aer Lingus Teo) v. Labour Court (No. 1) [1987 ILRM 373], where it was held that S. 19(5) of the Employment Equality Act of 1977, being the equivalent provision to S. 77(5) of the Acts, obliged the courts to interpret the time limit strictly where reasonable cause for extension had not been shown. I further note the finding of the High Court in The Minister for Finance v. The Civil and Public Service Union and others [2006 IEHC 145], which upheld, inter alia, a finding by the Labour Court that the onus is on the party wishing to avail of an extension of time pursuant to the provisions of S. 19(5) or S. 77(5), respectively, to make an application to this end to the court or judicial body seized of the matter.
5.5. I therefore find that I have no jurisdiction to investigate the complainant’s complaint of harassment by a named supervisor.
The Substantive Complaint
5.6. Four issues arise with regard to the complainant’s substantive complaint: Were the promotion competitions in which she participated connected enough to be evidence of a “general disposition to discriminate” as defined by the Labour Court in the case of Department of Health v. Gillen [ADE 0315], and if yes, did the respondent discriminate against the complainant in any of these competitions? Also, did the respondent discriminate against the complainant on grounds of gender pursuant to S. 6(2)(a) in access to promotion contrary to S. 8(1)(d) of the Acts in the promotion competition for Stabilisation, Settlement and Integration Services Manager in September 2005? Finally, did the respondent victimise the complainant contrary to S. 74(2) of the Acts in that same competition?
5.7. I will turn first to the three competitions that took place before September 2005.
5.8. In Department of Health v.Gillen, the Labour Court accepted that the complainant was rejected by the appellant in two different promotion competitions, which were both held in November 1999, on the ground of being over 50 years of age. In addition to the complainant, no other candidate over 50 years of age succeeded in either competition. The court held that the complainant’s lack of success in both competitions was credibly related to his age and that his lack of success should be “considered as separate manifestations of the same intention to discriminate”.
5.9. The Court in Gillen does not state anything specific about proximity in time between acts than can be interpreted as separate manifestations of the same intention to discriminate; therefore, the question is: was the complainant in each case not appointed because she was a woman, and was a man appointed instead? If this condition is fulfilled in the case of each of the three competitions that precede the competition that is in time under the Acts, would come under the jurisdiction of the Tribunal.
5.10. I therefore propose to examine these competitions from the totality of the evidence provided to the Tribunal.
Competition for Facility Leader (Integration/Resettlement), June 2000
5.11. With regard to this competition, I note that the explanation offered by the respondent, i.e. that a female candidate was originally offered the position but did decide not to take it up, and that the complainant did not re-apply when the position was re-advertised (see para 4.3 above).
Competition for Training Manager, September 2000
5.12. The respondent stated in their submission (see para 4.4 above), that a woman was appointed to the position, and submitted a copy her cv in evidence. The complainant did not challenge the fact that a woman was appointed training manager. Since a woman was appointed in this competition, discrimination on the gender ground can not arise.
Competition for Team Leader (Stabilisation), February to September 2003
5.13. With regard to this competition, it is common case between the parties that the complainant was the only candidate for the position and that the position went unfilled at the material time.
5.14. The complainant submitted an Executive Meeting minute of the respondent’s in evidence, which states that “second interview was never held for Team Leader post, Stabilisation – this post will no longer exist in the new service. There may be a Team Leader position created in the new service – if so the Senior Project Worker who had applied for the TL post in the Stabilisation service will be offered an interview for the Team Leader, ‘Stabilisation, Settlement and Integration Service’ – clarify this with IBEC.”
5.15. It is also common case that the complainant was promoted to the position of Team Leader (Stabilisation, Settlement and Integration) in September 2005.
5.16. From a full consideration of the facts surrounding the competitions on which the complainant based her case for ongoing discrimination within the meaning of S.77(5) of the Acts, as outlined above, I find that no prima facie case exists for making a connection between these competitions in terms of the complainant’s overall complaint of gender discrimination in access to promotion, that would bring her case within the jurisprudence of the Gillen case.
5.17. Accordingly, I find that this part of the complainant’s case is out of time, and that I do not have jurisdiction to investigate it any further.
Competition for Stabilisation, Settlement and Integration Services Manager, September 2004
5.18. In addition to her written submission, the complainant stated in oral evidence that she considered she had been victimised in the interview process for this position. The background to this is that first in July 2003, and again in March 2004, she made a complaint to one of the respondent’s senior manager, Ms O’S, against her immediate supervisor, Mr B. Since I have already found that I have no jurisdiction to investigate the substance of this complaint (see para 5.3 above), I will limit myself to outlining the respondent’s response. The complainant submitted that she felt initially supported by Ms O’S, but that Ms O’S became irritated and asked the complainant to “move on”. Meetings were held, but did not change the Mr B.s alleged behaviour.
5.19. Ms O’S, on behalf of the respondent, submitted that she did take the complainant’s complaint against Mr B. seriously. She recalled a meeting with Mr B. in January 2004, in which he requested that the complaint be put in writing. This was communicated to the complainant. Ms O’S recalled that she went on sick leave shortly afterwards, and that she phoned the complainant and asked her to submit her written complaint to any member of the Executive Team. In oral evidence, it was Ms O’S’s recollection that the complainant said to her she did not know where to start on this matter, and that she was taking legal advice in relation to it.
5.20. In response to a direct question by the Tribunal, Ms O’S confirmed that she had notified the Executive Team of the complainant’s complaint before the written complaint was finalised, despite the fact that the complainant had advised her that she was taking legal advice on the matter.
5.21. As a result, the respondent’s senior management team knew about the complainant’s difficulties with her immediate supervisor, Mr B. and that she had considered filing a written complaint, by the time Mr B. had left the organisation and the complainant was competing for his position.
5.22. The interview contained a question on dealing with difficult staff or supervisors. Candidates were asked to describe such a situation in which they found themselves. The same question was put to all candidates who attended for interview.
5.23. Counsel for the complainant submitted that the question was victimising for the complainant in light of her recent complaint about her own supervisor, the ensuing events and the fact that the senior management team was aware of same, and should therefore not have been put to the complainant. The respondent’s position is that such a question is a standard question for management position such as the one at issue, and it was therefore not victimisation of the complainant to ask her this question. The respondent further submitted that the question was slightly altered for the benefit of the complainant, and was worded as: “How do you deal with staff resistance?”
5.24. In the event, the complainant answered this particular question by recounting an event from her previous work in the UK. All three members of the interview board for the position were in attendance at the hearing and explained their rating of the complainant, and of the successful candidate, in oral evidence. Ms O’S said that the successful candidate came across as having a clear vision for the team. Mr K likewise stated that in his view, the successful candidate was drawing on his experience, and gave good examples to the interview board. Mr. D also confirmed the giving of examples by the successful candidate.
5.25. In contrast, both Mr K and Mr D said they felt that the complainant’s answer was clichéd and “management speak”, without real examples.
5.26. It was then submitted by counsel for the complainant that the complainant was fettered in this regard by the impossibility to refer to her recent difficulties and therefore limited to discussing generalities and an occurrence from the early days of her career, unlike the successful candidate, who could draw on his non-contentious experiences in the respondent organization to make a convincing presentation to the interview board. Counsel submitted that marking the complainant down for her performance, limited as it was by circumstance, amounted to victimisation for having made a complaint against Mr B.
5.27. Victimisation is defined in S. 74(2) of the Acts as “adverse treatment of an employee by his or her employer” for, inter alia, “opposing by lawful means an act which is unlawful under this Act or the said Act of 2000, or which was unlawful under such repealed enactment.” (S. 74(2)(e) The complainant’s allegation of harassment by Mr B., while out of time before this Tribunal, can reasonably subsumed under that paragraph. The issue then is: does the asking of the question about staff or supervisor difficulties and the rating of the complainant’s response constitute “adverse treatment”?
5.28. I would first like to note that I recognise the logic behind counsel’s argument. His submission would merit serious consideration if the question asked were so specific to an organisation that an internal candidate with a specific prior experience that would be inappropriate to discuss would have no option but to answer it evasively. Under such circumstances, the subsequent downgrading of the candidate could be considered victimising, depending on the circumstances of the case.
5.29. However, in the case at hand, I find that a question about a difficult situation with a staff member of a supervisor is a very standard interview question for a higher management position in many different employment contexts, and it would not be unreasonable to expect the complainant to prepare herself for this eventuality and manage the situation pro-actively.
5.30. I further note that the recollection of the respondent’s witnesses is supported by copies of the presentation the complainant and the successful candidate gave to the interview board, which do show a greater degree of specificity on part of the successful applicant. I also note from presentations and marking sheets submitted by the respondent after the hearing, that the two outside candidates used even more “management speak” in their presentations and interview answers, and where graded lower than the complainant.
5.31. I therefore cannot accept counsel’s argument that the complainant was victimised by either the asking of the question, or by the way her answer was marked. The question is a standard question for a management position like the one under investigation, and its omission in the complainant’s interview would have been unfair towards the other candidates. It is also of such a general nature that the complainant could have anticipated it and prepared her response accordingly.
5.32. With regard to the complainant’s contention in her written submission that she was better qualified than the successful male candidate (paras 3.6 to 3.14 above), I note the finding of the Labour Court in Portroe Stevedores v. Nevins, Murphy and Flood [EDA051] that it “isnot the Court’s function to determine who was the most meritorious candidate for the disputed position. Rather, its role is to establish if the selection was tainted by unlawful discrimination.” The court went on to state that it is for the complainant to submit facts from which an inference of discrimination arises. It is then for the respondent to rebut this inference. Following the finding of the Employment Appeals Tribunal for England and Wales, in Barton v Investec Henderson Crostwaite Securities Ltd  IRLM 332, the Court went on to state that cogent evidence is needed for such a rebuttal. Also in Portroe, the Court held that “processes used in making selection for employment must be sufficiently transparent and examinable so as to satisfy the Court that the result was not tainted by discrimination.”
5.33. In regard to the competition for Stabilisation, Settlement and Integration Services Manager in September 2004, the fact that a male candidate was appointed to the position, and the complainant’s contention that an inappropriate question was asked at interview, does raise a presumption of discrimination having possibly occurred. However, on careful examination of all interview notes of all shortlisted candidates, the cv’s of those candidates and of all presentations made to the interview board, as well as the oral evidence of the interview board members as to their reasoning in allocating marks to the complainant and the successful candidate, I am satisfied that the interview process was objectively structured and fairly conducted, and that the subsequent marking of candidates was fairly conducted as well. I therefore find that in the instant case, the respondent has successfully rebutted the presumption that unlawful discrimination has occurred.
6.1. Based on all of the foregoing, I find that
(i) I have no jurisdiction to investigate the complainant’s complaint of harassment by a named supervisor;
(ii) I have no jurisdiction to investigate the complainant’s complaint of unlawful discrimination on ground of gender pursuant to S. 6(2)(a)in regard to promotion to
a. Facility Leader (Integration/Resettlement), in June 2000;
b. Training Manager, in September 2000;
c. Team Leader (Stabilisation), February to September 2003
contrary to to S. 8(1)(d) of the Acts;
(iii) The respondent did not discriminate against the complainant on ground of gender pursuant to S. 6(2)(a) in regard to promotion to Stabilisation, Settlement and Integration Services Manager, contrary to S. 8(1)(d) of the Acts, in September 2004;
(iv) The respondent did not victimise the complainant contrary to S. 74(2) of the Acts in her interview for Stabilisation, Settlement and Integration Services Manager.
30 June 2008