THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-204
Donegal County Council
(represented by Local Government Management Services Board)
File Reference: EE/2008/532
Date of Issue: 3rd November 2011
Decision DEC - E2011-204
Donegal County Council
(represented by Local Government Management Services Board)
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(h) - race, Section 8(1) - access to employment , burden of proof - Section 85A , prima facie case.
1.1 This dispute concerns a claim by a complainant that she was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1), 6(2)(h) of the Employment Equality Acts 1998-2008 and contrary to section 8 in that she alleges that she was discriminated against in relation to promotion.
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 12th August 2008 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 26th April 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 11th March 2009 and from the respondent on the 23rd December 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 23rd June, 2011. The last correspondence was received on the 8th August 2011.
3. Summary of the Complainant's Case
3.1 The complainant is an English national and was employed by the respondent for a year and ten months as a clerical officer. The respondent advertised the position of Assistant Staff Officer and the complainant applied for the job on the 12 November 2007. She was short listed and called for an initial interview which took place on the 28th February 2008. She was successful and called for the final interview on the 22nd April 2008. The complainant said that she was due for interview at 11:40 and at about 9:30 on the morning of the interview she received a telephone call from an officer in HR. She said that she was told that she did not qualify for the interview because of her educational qualifications. She was advised that that the interview panel had made the decision and she told not to attend the interview. The educational requirements for the position required an applicant to have a Leaving Certificate with grade C on a higher level paper in 3 subjects, or to have obtained a comparable standard in an equivalent examination, or to have a 3rd level qualification at degree standard. The complainant said that she pointed out to HR the 3rd level qualifications that she had obtained including City and Guilds qualifications. She was told that her City and Guild qualifications did not count. The person in HR told her that she was unsure about the qualifications and maybe in the circumstances she should attend for interview. The complainant said that she declined given that the respondent was unable to confirm her eligibility.
3.2 The complainant said that she could not understand how this could happen on the morning of the interview given that the respondent had her application and certificates for about five months and that this was adequate time to sort out her eligibility. She submitted that she had spent a lot of time preparing for the interview and attended talks and seminars arranged by the respondent in relation to the organisation and to local government in general. She said that she felt humiliated and was shocked and upset about this treatment which took place on the morning of the final interview. She wrote to the County Manager seeking a meeting with him but this was not granted. She was then informed verbally by HR that a further interview was arranged for her on Wednesday the 30th April 2008 and this was confirmed in writing by a letter from the HR Manager. The complainant said that after much deliberation she decided not to attend because she had received no assurances that she would be treated in a fair and equitable manner. She would also be interviewed by the same interview panel which made the decision to disqualify her a week earlier because of her qualifications and because she felt so upset about her treatment she believed she would not perform at her optimum level. She wrote to the HRM on the 28th of April and informed him of her decision. She was called to a meeting by the Director of Corporate Services to discuss the matter on the 30th April 2008 which she attended. The complainant stated that she was treated in a hostile manner by the Director throughout the meeting and she felt humiliated and marginalised and was not in a fit state to attend the interview scheduled that evening even if she had intended to do so. The Director confirmed to her that no other candidate had their qualifications questioned by the interview board on the day of the interview. The complainant said that as a result of the way she was treated she was unable to attend work and she was certified medically unfit for work due to stress for twelve days.
3.3 The complainant submits that the issue about her educational qualifications would not have arisen if she was from the Republic of Ireland with Irish qualifications. She submits she was treated less favourably than any of the other candidates in contravention of section 8 of the Acts.
4. Summary of the Respondent's case
4.1 The respondent denies that the complainant was discriminated against in relation to access to promotion. The respondent advertised and invited applications for the post of Assistant Staff Officer Grade 1V in November 2007. The position was a promotional grade for clerical officers and also an entry grade into the service so there were both internal and external candidates. The criteria for the post were set out by the Department of Environment, Heritage and Local Government. Candidates were required to have a Leaving Certificate with grade C in at least three higher level papers or have obtained a comparable standard in an equivalent examination or hold a third level qualification at degree level or candidates could qualify for interview if they had worked in public bodies such as a Local Authority, HSE or VEC and other equivalent bodies for 2 years. The complainant had less than 2 years service so she did not qualify by that method. There were 338 applicants and a panel was established for the purposes of carrying out the initial short listing. And all the applicants who did not satisfy the stated qualifying criteria in relation to education, training and experience were not short listed. The respondent then called 298 applicants for a preliminary interview to select candidates for a final interview. The complainant was one of 71 successful candidates and was called to a final interview on the 22nd April 2008 at 11:40. On the morning of the interview when the Interview Board were previewing the candidates for that day's series of interviews the Board queried the complainant's educational qualifications with the HR department. It was not clear to the Interview Board if the complainant's educational qualifications qualified her for interview. The respondent submitted that once a question arises about qualifications it is incumbent on them to assess the qualifications in question against the National Framework of Qualifications and those set by the Department of the Environment, Heritage and Local Government. Once the complainant's qualifications were fully assessed and it was confirmed that they met the criteria and she was immediately offered a new date for interview. The complainant refused to attend the rescheduled interview and withdrew from the competition.
4.2 The HR Manager stated in evidence that it was unfortunate that the issue about the complainant's qualifications arose on the morning of her interview. He said that if he had been in the office when the call came through he would have advised the interview board to conduct the interview with the complainant and that any issue about educational qualifications could be checked later. He said that he regretted that the complainant had been contacted on the morning of her interview. The Staff Officer who took the call from the interview board contacted the awarding body the University of Ulster about the qualifications. Following the confirmation that the complainant's educational qualifications met the criteria for the position HRM telephoned the complainant to offer another appointment for the interview. He said that he apologised to her for the late hour at which the issue about qualifications had been raised. He said that he confirmed to her that her qualifications were in order and offered her another date for the interview and he confirmed this date in writing to her. The complainant responded by letter dated the 28th of April 2008 stating that the time of the interview was not suitable to her and enclosing the statutory form EE 2 requesting information in accordance with section 76 of the Equality Acts. The HRM said that another applicant also had their qualifications questioned by the interview board and that person sat the interview. He said that the complainant was not discriminated against in relation to her qualifications. He said that it is usual for the respondent, given their location so close to Northern Ireland, to have a significant number of applicants with qualifications from the University of Ulster. For this particular competition a number of applicants had qualifications from a number of countries outside of Ireland and over 20 applicants were relying on qualifications from Northern Ireland. He said that the respondent did not require the applicants to declare their nationality and the interview board would not have known the complainant's nationality. He said that the Council employs a significant number of people from Northern Ireland and they also have employees from England Germany Poland and Pakistan.
4.3 It was submitted on behalf of the Respondent that it is an equal opportunity employer and is fully committed to treating all employees and perspective employees equally. The competition for the post of assistant staff officer was open to all potential candidates equally, once they fulfilled the necessary qualifications. The issue which arose about the complainant's qualifications did not relate the nationality or otherwise of the candidate. The application form for the position did not require the candidates to state their nationality so therefore the Interview Board could not have any knowledge of the complainant's nationality. In relation to the outcome of the interview process, it was submitted that out of the 35 candidates placed on the panel, 12 had qualifications which were obtained from colleges outside of the Republic of Ireland and in addition one candidate placed on the panel was French. The respondent disputes the complainant's claim that she was discriminated against on the race ground or that the issues complained about would not have occurred if she had Irish qualifications.
4.4 The respondent representative submitted that the complainant had failed to establish a prima facie case of discriminatory treatment on the race ground. She submitted that the complainant case amounts a grievance in relation to how the matter of the complainants qualification was handled by the respondent and the evidence presented by the complainant fails to establish any discernable connection between race and the alleged less favourable treatment. The representative referred me to the Labour Court decision in the case of Arturas Valpeters v Melbury Development Limited EDA0917 in relation to the burden of proof and asked me to apply the reasoning set out in that case in relation to establishing a prima facie case of discrimination.
5. Conclusions of the Equality Officer
5.1 The issues for decision in this case is whether or not the respondent discriminated against the complainant on the age ground, in terms of section 6(1) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards access to promotion. Section 6 of the Acts provides inter alia:
6. -- (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'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
and Section 85A of the Acts provides:
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".
5.2 This requires the Complainants to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of her, the case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.4 I will now consider the issues that have been raised by the complainant in relation to access to the position of Assistant Staff Officer Grade 1V which she contends is unlawful discrimination on the grounds of race contrary to the Acts. The complainant submits that she was treated in a discriminatory manner when her educational qualifications, which she obtained outside the Republic of Ireland, were questioned by the Interview Board on the morning of the interview. She submitted this would not have happened to an applicant whose educational qualifications were obtained within the Republic of Ireland. The respondent stated that once an issue was raised by the Interview Board in relation to whether the educational qualifications of the complainant complied with the criteria set out by the Department of Environment, Heritage and Local Government they were obliged to check them out. The respondent, having checked out the educational qualifications of the complainant with the University of Ulster, was satisfied that she was qualified to sit the interview and she was immediately offered another interview. The complainant refused the offer of another interview. The complainant got through two stages of the recruitment process and her education qualifications were not raised. The issue only arose on the day of the final interview. I note from the HRM evidence that if he had been present when the interview made the enquiry with his department that he would have told them to proceed with the interview and that the matter could be checked later. I note from the evidence that another candidate was treated in the same way as the complainant and had to have his qualifications checked before he was interviewed; this candidate sat the interview. It was unfortunate that the query was raised with the complainant on the morning of her interview; however I am satisfied that the enquiry about her qualifications solely related to whether she complied with the educational criteria set out for the position. I note that of the 35 successful candidates who were placed on the panel 11 have qualifications from colleges in Northern Ireland and one has qualifications from France. Therefore I am satisfied that the treatment of the complainant in relation to her educational qualifications cannot be construed as discriminatory treatment on the race ground.
5.5 In considering this case I have taken cognisance of the Labour Court decision in the case of Melbury Developments Limited v. Arthurs Valpeters (Determination No. EDA0917) where the Court stated:
"In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
Having regard to the above mentioned jurisprudence and the totality of the evidence adduced in the present case, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that she was treated less favourably than an Irish person or a person of a different nationality to the complainant would have been treated, in comparable circumstances, in relation to the interview process. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the race ground in relation to access to employment.
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1) and 6(2)(h) and contrary to section 8(1) of the Acts in relation to access to employment.
3rd November 2011