FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77A(2)(A), EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : PUBLIC APPOINTMENTS SERVICE (REPRESENTED BY CHIEF STATE SOLICITORS OFFICE) - AND - KEVIN RODDY DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 77A(2)(a) of The Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Complainant appealed a decision of an Equality Officer No. ND-2009-045 to the Labour Court on the 16th October, 2009, in accordance with Section 77A (2)(a) of the Employment Equality Acts 1998 to 2008. A Labour Court hearing took place on the 6th October, 2010. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Mr. Kevin Roddy (“the Complainant”) against the decision of an Equality Officer in a claim alleging discrimination on the ground of gender by the Public Appointments Service (“the Respondent”). He alleges discriminatory treatment by the Respondent in relation to access to employment contrary to Section 6(2)(a) of the Employment Equality Act 1998 and 2008 (The Acts) and in contravention of Section 8 of that Act.
The Equality Officer found that the Complainant had failed to comply with the provisions of Section 77(7) of the Acts and consequently held that he had no jurisdiction to investigate the complaint. Therefore, he dismissed the case as misconceived under Section 77 (A) of the Acts. It was against that decision that the Complainant appealed to the Court.
Background
The Complainant applied for a position as Senior Executive Planner with Donegal County Council in July 2006. The Public Appointments Service undertook the recruitment and selection process. On 8th September 2006 he was informed that he was not among those candidates short-listed to attend for interview. As the Complainant was dissatisfied with the outcome, he sought to challenge the Respondent’s decision. On 13th September 2006 he submitted a series of questions under the Freedom of Information (FOI) Acts, 1997 and 2003 to the Respondent and sought copies of the application forms of all short listed candidates to enable him make comparison with his own knowledge and experience for the job. By letter dated 13th October 2006, the Respondent supplied the requested information with one exception. Section 28 of the FOI Acts provides an exemption on the supply of personal information to a querist, consequently the Respondent refused to supply the application forms for the other short-listed candidates. The letter specified that an internal review was possible if he so wished.
The Complainant sought more detailed information by letter dated 20th October 2006, relating to details of any contacts made between Donegal County Council and the Respondent concerning the criteria for selection. He also sought detailed records/notes of short listing assessment and specifically requested whether his own application was decided fairly and equitably in light of the other candidates and previous applications he had made to both Donegal and other County Councils.
The Respondent replied by letter dated 17th November 2006, it upheld the short-listing process and stated that it was guided by an expert board who examined the application forms and assessed them against pre-determined criteria based on the requirements for the position. Among the details accompanying the letter were details of the breakdown of candidates by gender. This showed that there were 12 male and 7 female applicants. 7 of the male and 6 of the female candidates were short-listed for interview. It invited the Complainant to have the matter internally reviewed if he was not satisfied with the response. By letter dated 7th December 2006 he sought an internal review and in addition he also sought a review by an Ombudsman or Equality Commission. The Respondent reported on the internal review carried out by letter dated 12th January 2007, in which it upheld the decisions taken under the FOI Acts not to supply personal information and upheld its selection of personnel by the Selection Board.
Summary of The Complainant’s case:
The Complainant submitted that he had complied with Section 77(7) of the Acts. He held that the Equality Officer ignored correspondence between himself and the Respondent where he clearly and unambiguously questioned the decision of the Selection Panel and sought a review of their substantive decision. He maintained that this was a direct challenge to their decision and was an application for redress.
The Complainant maintained that his requests for information were designed to ascertain whether the decisions of the Selection Board were transparent, fair and equitable.
He maintained that the information supplied revealed that of the 12 male candidates 7 were short-listed (58%) and of the 7 female candidates 6 were short-listed (86%). This highlighted a significantly higher success rate amongst females than males. In response to this information, the Complainant by letter dated 7th December 2006 sought an internal review by the Respondent of the Board’s decision and an independent review by an Ombudsman or Equality Commission.
The Complainant contended that as there are no records to indicate how the short-listing criteria operated it is therefore not transparent and does not comply with the Public Appointments Service Charter. He submitted that the only records of the process available are details of the members of the panel, and the criteria used. However, no evidence exists on how each candidate was assessed measured and graded.
Summary of The Respondent’s Case
Ms. Kathy Smith B.L on behalf of the Respondent submitted that the Equality Officer was correct in holding that the Complainant had not complied with the requirements of Section 77 (7). The Respondent submitted that the Complainant had not referred his claim for redress to the Public Appointments Service prior to making his claim for redress to the Equality Tribunal; he had submitted a series of letters to the Respondent.
Ms. Smith held that notwithstanding the content and tone of the questions he posed in the letters, he did not seek to appeal the decision, nor did he seek a review of the decision not to shortlist him. The correspondence was entirely focused on Freedom of Information issues. While he indicated to the Respondent that the information he received in response to his queries gave him significant cause for concern he still did not refer a claim for redress under the Acts to the Respondent.
The Law Applicable
- Section 77
(7) [Where the complainant's claim for redress is in respect of discrimination
- (a) by the holder of a recruitment licence under the Public Service Management (Recruitment and Appointments) Act 2004 in the course of such a recruitment or selection process as is referred to in section 76(5)(a) ,
(b) [not relevant]
(c) [not relevant]
the complainant shall in the first instance refer the claim for redress to the holder of the recruitment licence concerned or, as the case may be, to the Minister for Defence or the Commissioner of the Garda S�ochána.]- (a) by the holder of a recruitment licence under the Public Service Management (Recruitment and Appointments) Act 2004 in the course of such a recruitment or selection process as is referred to in section 76(5)(a) ,
(8) Where subsection (7) applies to a claim for redress in respect of discrimination, the complainant may not refer the case under subsection (1) , […] or (3) unless—- (a) the [holder of the recruitment licence] concerned or, as the case may be, the Minister for Defence or the Commissioner of the Garda S�ochána have failed to give a decision on the claim on or before the twenty-eighth day after it was referred, or
(b) the complainant is not satisfied with the decision given on the claim, and in a case to which paragraph (a) or (b) relates, the end of the period of time which is applicable under subsection (5) (including, where appropriate, applicable under that subsection by reference to subsection (6) ) shall be construed as—
- (i) the end of that period, or
- whichever last occurs.
Section 77(7) of the Acts established a forum for redress at first instance againstinter aliathe holder of a public service recruitment licence and set down parameters under which a complaint under the Acts must be initiated before the Director of Equality Tribunal can have jurisdiction to entertain the complaint. In the case of the Public Appointments Service, being the holder of such a licence, the law provides that a claim involving discrimination in recruitment must first be referred to the Service itself. This is a mandatory provision and the Court on appeal, has no discretion to hear a claim unless the provision has been adhered to.
Section 77(7) refers to a claim of redress “in respect of discrimination”.
A complainant is prohibited under Section 77(8) from referring a case to the Equality Tribunal until the Respondent has either failed to give a decision on the claim within a twenty-eighth day period or at all.
Determination
In his appeal to the Court the Complainant submitted that his correspondence with the Respondent was clearly and unambiguously designed to question its decision and was specifically instituted to request a review of its substantive decision and therefore he held that he had complied with Section 77(7) of the Acts.
The Complainant further submitted that the purpose of the correspondence must be taken as a whole and cannot reasonably be regarded as solely a request for information but as a direct challenge of the Respondents decision and as a mechanism for seeking redress.
The Court finds it difficult to accept this contention. Having examined all of the Complainant’s correspondence to the Respondent there was no reference to a claim of discrimination, on any of the nine grounds under the Acts. There was no mention of discrimination on the gender ground, even after the Complainant was presented with a breakdown of the male/female numbers involved in the selection process.
In contrast it would appear to the Court that the grounds of his dissatisfaction with his non-selection was based more on his superior qualifications, skills and experience.
By letter dated 13th September 2006 he stated:
- “Iwas surprised that with almost 20 years experience of a range and depth which would be difficult to surpass that I have been excluded.”
In submitting his claim before the Court he argued that
- “The manner in which Donegal County Council nominated [Ms. A] to be on the Selection Board suggests a strategy to favour the candidates already in employment...”
however, he made no reference to their gender and no allegation of discrimination on the gender ground.
The Court cannot accept that a claim of discrimination was referred in accordance with Section 77(7), in any event even if such a complaint had been made the Respondent did not have the opportunity to address such a complaint and give its decision within the requisite twenty-eight day period. It is clear from the correspondence that the Respondent could not have known that the Complainant was invoking the Acts and submitting a claim of discrimination on any ground not alone on the gender ground.
On that basis the Court concurs with the findings of the Equality Officer and upholds his decision to dismiss the claim in accordance with Section 77A of the Acts. Accordingly, the Complainant’s appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th October, 2010______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.