THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 024
Mr. Kevin Roddy
Public Appointments Service
(represented by Mr Conor Dignam B.L., instructed by the Chief State Solicitor)
File Reference: EE/2007/149
Date of Issue: 8th March 2010
1.1. The case concerns a claim by Mr Kevin Roddy that the Public Appointments Service victimised him contrary to Section 74(2) of the Employment Equality Acts 1998 to 2008.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 6 March 2007. A submission was received from the complainant on 12 August 2008. A submission was received from the respondent on 23 September 2008. On 29 July 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, 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. On this date my investigation commenced. As concerns about time limits as specified by S. 77(5) of the Acts arose from the study of the papers, I proceeded to hold a joint preliminary hearing on this matter on 13 January 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant states that some years prior to making an application to the respondent for a position as senior executive planner with Donegal County Council, he had taken a case against a named individual, Ms A, before the Equality Commission of Northern Ireland. Ms A subsequently entered employment with Donegal County Council, and sat on the interview board for the position to which the complainant applied. It is his contention that by not advising him of this fact, the respondent victimised him.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies victimisation of the complainant.
4. Conclusions of the Equality Officer
4.1. The issue for preliminary decision in this case was whether the complainant's complaint of victimisation was lodged within the time limits specified by S. 77(5)(a) of the Acts. However, in order to be able to make a finding on this, I also needed the complainant to specify the exact nature of the complaint.
4.2. Accordingly, the complainant stated at the hearing that his complaint is one of an act of omission pursuant to the definition given in S. 2 of the Acts: The omission of the respondent to advise him of the involvement of Donegal County Council and the named individuals in the selection process.
4.3. S. 74(2) of the Acts defines victimisation as " dismissal or other adverse treatment of an employee by his or her employer [that] occurs as a reaction to --
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(f) an employee having opposed 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, [...] [emphasis added]
4.4. Based on the complainant's own evidence, the question arises whether lack of knowledge of the facts referred to above, in a situation like a job competition where no candidate is advised of the composition of the interview board, can be victimisation. A second, related question, is whether the respondent would have been in possession of the relevant knowledge to impart or withhold, as alleged, from the complainant.
4.5. With regard to this second issue, Ms B as witness for the respondent stated that Ms A was selected by Donegal County Council on 14 July 2006 to serve on the interview board. On 23 August 2006, Ms A received written confirmation of her appointment from the respondent. The letter to Ms A contained the following paragraph:
It is always possible that having agreed to assist, you may subsequently become aware of an issue which could be seen to cause a conflict of interest for you in your role in this competition. The Public Appointments Service fully accepts that such occurrences are inevitable from time to time. To ensure that the selection process remains independent, objective and fair you should advise this Office of any such matters at an early stage, so that alternative arrangements can be put in place should that prove necessary. You cooperation in this matter is greatly appreciated.
4.6. According to Ms B., this is a standard paragraph and all persons serving on interview boards or similar are made aware of their responsibilities in this regard. If a conflict of interest is declared, the person is asked to step aside from the selection process. Ms B stated clearly that neither Ms A, nor Donegal County Council, informed the respondent of the existing conflict of interest at any time.
4.7. By writing to Ms A in the way it did, the respondent took reasonable steps to prevent possible conflicts of interests from occurring. I am satisfied that the respondent did not know about Ms A.s conflict of interest at the time the interview board met and shortlisted the applicants, and was therefore not in a position to inform, or, as alleged, purposely omit to inform, the complainant of these facts.
4.8. Going back to the first point which arose, as to whether lack of knowledge of the composition of the interview board can amount to victimisation when no other candidate has such knowledge either, I find that it can not. Victimisation as defined in the Acts is a targeted adverse reaction at an individual as a response to a number of clearly defined situations that are connected with alleged unlawful conduct under the Acts. Not only is there no evidence that the complainant was singled out in any way by not being advised about who was on the interview board, but I am satisfied that the respondent, despite its own best efforts to be apprised of situations that would give rise to conflicts of interest, had no knowledge of the background to the complainant's application that could give rise to a complaint of victimisation in the first place. These two connected sets of facts, which transpired at the preliminary hearing of the complaint, are fatal to the complainant's case of victimisation, as no prima facie case can possibly exist. The issue of timeliness therefore becomes moot.
5.1. Based on all of the foregoing, and pursuant to S.79(6) of the Employment Equality Acts, I find that the complainant has no prima facie of victimisation as defined in S. 74(2) of the Employment Equality Acts 1998 to 2008, and accordingly find for the respondent.
8 March 2010