The Equality Tribunal
3 Clonmel Street
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
(Represented by Mr. Tony Kerr BL on the instructions of O'Mara Geraghty McCourt Solicitors)
A Statutory Body
(Represented by Brian Foley BL on the instructions of Mason Hayes and Curran)
File No. EE/2008/407
Date of Issue: 16 November 2011
Case reference EE/2008/407 - DEC-E2011-213
Employment Equality Acts - Discriminatory treatment - Promotion - Discriminatory dismissal - Gender - Family Status - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by a Solicitor (hereafter "the complainant") that she was subjected to discriminatory treatment and discriminatory dismissal by a Statutory Body (hereafter "the respondent") on the grounds of her gender and family status. The complainant submitted that the first date of a discriminatory act was on 13 February 2008 and that she was discriminatorily dismissed on 31 March 2008.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 7 July 2008 under the Employment Equality Acts. In accordance with his powers under section 75 of the Acts, the Director then delegated these cases to Tara Coogan- 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 19 April 2011. The investigation commenced on that day. As required by Section 79(1) and as part of my investigation, I scheduled a hearing to take place on 19 September 2011. A request for an adjournment was granted in exceptional circumstances for the respondent on 31 May 2011. A hearing was held on 11 October 2011. It was agreed between the parties that the respondent would submit further information to the complainant and that the complainant could make further reply in relation to same. This reply was received on 3 November 2011 and the respondent was offered a reply period up to 15 November 2011. This decision has been anonymised with the consent of the parties.
2. Case for the complainant
2.1. The complainant commenced employment as a Solicitor with the respondent on 25 May 2005 pursuant to a fixed term, full-time contract. She had been successful at previous interview in 2004. The contract came to an end on 31 March 2006. The complainant was offered and accepted a second contract from 3 April 2006 to 31 March 2007. She entered into a third contract covering the period between 31 March 2007 and 31 December 2007. A forth, three month contract, was issued on 1 January 2008. This contract came to an end on 31 March 2008.
2.2. While working under the second contract the complainant moved to working part-time although she stated that her workload at times was that of a full-time employee. The complainant stated that at no time during her period of employment were any complaints made or issues raised concerning her professional expertise of knowledge.
2.3. The second contract was renewed despite the fact that the complainant had missed a deadline to be appointed on a panel. The complainant also stated that another colleague who had failed to qualify for this panel also had her contract extended in 2006/2007.
2.4. The complainant submitted that she experienced particular difficulties throughout her employment arising from her status as a part-time employee. She submitted that, at a meeting on 27 February 2007, a named managing solicitor had stated that promotions were only available for full-time solicitors. Furthermore, the complainant claimed that her manager had made it very clear to her in September 2007 that he was very unhappy with the fact that the complainant had decided to work part-time.
2.5. In January 2008, the complainant was advised of a competition being held by the respondent for the recruitment of solicitors (grade III). The complainant received notification of the interview but stated that at no time was she informed by the respondent that failure to attend or be successful at same would have implications on her continued employment.
2.6. The complainant attended a pre interview training on 4 February 2008 and on 13 February 2008 she attended the actual interview. She submitted that she felt she had done a good interview and stated that no issue was raised about her performance during it. The complainant submitted that she was heavily pregnant at the time she attended the interview.
2.7. The complainant received an email informing her that she was unsuccessful at the interview on 19 February 2008. The complainant subsequently obtained a copy of her marking sheet and took exception to the manner in which it was headed 'temporary marking sheet' and the actual assessment of her performance which the complainant submits were too low. When the complainant spoke with her managers about her poor marking, she submitted that a named manager had said "sure she had something else on her mind". The complainant stated that she understood this to mean that the respondent was aware she was pregnant. The poor results were devastating for the complainant who had worked with the respondent for over three years without any issue concerning her performance. Subsequently, the complainant was informed that her fixed-term contract would not be renewed.
2.8. The complainant submitted that while she was surprised and upset as a result of the scoring she had understood her employment to be secure regardless. She maintains that she was not made aware of the consequence of not being successful in the competition. She received an letter (sent to her work address despite her being out on sick leave) dated 27 February 2008 (received on or about 5 March as it was resent to her home address) informing her that her contract would not be renewed as she had been unsuccessful at interview.
2.9. The complainant has been forced to conclude that the less favourable treatment she received was a direct result of her pregnancy and/or her family status as a part-time worker. Furthermore, she highlighted the fact that her request for an extension for a review about the interview was not consented to initially despite the fact that she had missed the deadline while on sick leave.
2.10. In a subsequent submission to the investigation, the complainant argued that in other professions in the public/civil service where fixed term contracts are offered, an interview process is required for the initial process only. It was argued that if it genuinely was the decision of the Board that fixed-term contract staff had to be successful in the above competition in order for their contracts to be renewed then such a decision would have been minuted at the Board's meeting. It was submitted that the respondent had maintained in their submissions that a decision to fill solicitor positions in [the service the complainant was involved in] should be filled in a permanent basis. This approach was varied by the respondent who extended their position at the hearing to either permanent or temporary positions.
2.11. The complainant relied on the following authorities:
Lee and Fox (DEE6/2003)
Cork County Council and McCarthy (EDA21/2008)
Portroe Stevedores v Nevans and Others (EDAI/2005)
The complainant requested for an "effective, proportionate and dissuasive" remedy as per Article 25 of Directive 2006/54/EC and submitted that had the complainant's contract been renewed and extended she would have been entitled to a contract of indefinite duration.
3. Case for the respondent
3.1. The respondent is a statutory body that is publicly funded. The body is overseen by an independent Board in accordance with the relevant legislation and has an executive management structure. It was submitted that from time to time, the respondent recruited staff on temporary fixed term contracts in order to deal with demand. Such situations may have arisen because members of permanent staff are on maternity leave; career breaks; long term sick leave; increases in demand for particular services or where there are delays in recruiting permanent staff through the Public Appointments Service. There has been little recruitment in recent years due to the general moratorium on recruitment to the public service.
3.2. It was the respondent's intention to establish a panel from which any vacancies that might arise in Dublin and surrounding areas over the next year or so would be filled. An Office Notice (2008/002) was issued to internal candidates on 10 January 2008. The second paragraph stated:
"This competition should be of particular interest to any Solicitors Grade III who are currently serving in a temporary capacity [with the respondent]. Managing Solicitors should therefore ensure that this notice is brought to the attention of any temporary solicitors ..."
3.3. The respondent stated that as there was a decline in certain services it was exploring whether there was a need to maintain the number of temporary solicitors [in the area that the complainant was working in]. It was decided to fill such positions on a permanent basis and it was submitted that the Board may only do so on a basis of an open competition. It was submitted that of the current Grade III staff, some eighteen avail of one or another form of part-time working to suit their particular needs. Of all Grade III staff 15 are male and 60 female.
3.4. The complainant was one of 53 applicants for the position of Solicitor, Grade III. 36 candidates were called for an interview. 31 candidates actually attended, 16 were successful. 82% of the successful candidates were female. The person who became fourth on the panel was a fixed term, part-time female employee of the respondent, similar to the complainant.
3.5. It was submitted that the complainant's contract was extended for a period of three months in order to ensure that she would remain employed until after the competition had closed. The respondent denied any knowledge of the complainant's pregnancy until after the interview results had been published.
3.6. The respondent denied any discriminatory approach or motive. The complainant simply was not as strong as other candidates. The selection process was conducted in a fair, open and transparent manner.
3.7. The respondent relied on the following authorities:
McGuirk and Irish Garden Publishers (DEC-E2007-031),
Brennan and St. Michael's House (EE19/1997,
Dublin Institute of Technology and A Worker (DEE994),
Lynskey and the Board of Management of Coolmine Community School DEC-E2002-035),
Horgan and Comiskey and County Meath VEC (DEC-E2007-147).
It was submitted that the complainant was not dismissed but that her fixed term contract of employment simply came to an end. There was never any disciplinary action taken against her.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. Discriminatory treatment
4.2.1. The complainant contended in the first instance that her performance at interview was marked down because the interview board knew she was pregnant and because of her known caring responsibilities. I find that a named female colleague of the complainant, who also had similar caring responsibilities, was successful at the interview. Therefore, I am satisfied that the fact that the complainant's family status was not a significant fact in the reason why the complainant had failed to meet the qualifying criteria.
4.2.2. I also note that the complainant argued that it was clear that she, at fourteen weeks, was pregnant and that this fact is sufficient to shift the burden of proof to the respondent. The respondent witnesses who carried out the interview denied any knowledge of her pregnancy. I find, on the balance of probability, that the respondent was not aware of the pregnancy at the time of the interview. I am also satisfied - even had the interview panel known about the pregnancy - based on the respondent's witness' account of the interview and the interview notes supplied, that the complainant had not performed as well at the interview as she herself had presumed.
4.2.3. I am satisfied that the there is no evidence of any discriminatory practice in relation to the selection process. While I note that the complainant argued that her interview was shorter than that of other candidates, I find that the interviews were broadly the same length and that the interview consisted of open-ended questions that were designed to elicit the candidate's knowledge and expertise in the area as well as examining their communication skills. The complainant's interview notes clearly indicate that she did give very short answers to the open-ended questions posed. I also note that the complainant maintained that her past experience demonstrated that she had the required skills for the job. While I accept that this is most likely to case, I am satisfied that this was a competition to be appointed to a panel which was entirely based on the candidates performance at the interview. She - like all the other candidates regardless of gender or family status - was required to demonstrate her knowledge and experience to the interview panel. I find that the panel - in fulfilling its mandate - could not rely on its past knowledge of the complainant. It is worth noting that the first three successful candidates on the panel were persons who had not worked with the respondent before.
4.2.4. I do not accept, on the evidence provided, that the respondent has a discriminatory attitude towards part-time workers. It is clear that the respondent employs a number of women and that à number of employees, including the complainant, work part-time and/or have taken maternity leave. I find that a large number of the respondent staff consists of female legal professionals and, in such circumstances, I do not accept that the comment allegedly made at a legal meeting about promotions being available 'to only full-time solicitors' would have passed without comment.
4.3. Discriminatory dismissal
4.3.1. I find that the complainant's contract of employment came to an end on 31 March 2008. I find that this was because her fixed-term contract expired. I accept that the respondent was at this stage notified of the complainant's pregnancy. This Tribunal was invited to infer that if the complainant had not been pregnant her contract would have been extended in the manner that it had been in 2006. It is correct in law to state that due to the special protection that pregnant women enjoy under employment law it is for the respondent to prove that there was another reason why the pregnant person's contract of employment was not extended should such a comparator situation arise. I am satisfied that the reason why the complainant's contract of employment was not extended was because the respondent was filling its existing vacancies in Dublin and nearby regions through the competition panel in accordance with its duties and that this approach is clear from the office notice of 2008/002. As the complainant had not qualified for the panel I am satisfied that the complainant's contract could not be extended. I have been not provided with any evidence to support an assertion that another person - who was not pregnant and had failed to qualify at the interview - had her/his contract extended. I find on the balance of probabilities that the complainant knew or ought to have reasonably anticipated, that failure to succeed at the competition would result in her contract coming to an end. I do not accept on the evidence provided that the complainant's contract was terminated because the respondent became aware that the complainant was pregnant. It is clear that the respondent's approach towards the complainant - from extending the complainant's contract of employment for a short period to the offer of pre-interview training - was geared towards ensuring that the exiting expertise and knowledge of its temporary staff could be retained.
4.3.2. It is not within this Tribunal's jurisdiction to deal with the Protection of Employees (Fixed-Term Work) Act 2003 per se. The fact that a Civil Service Circular for one Department stipulates that an initial interview for the same job is sufficient for a fixed term contract to be extended does not mean that holding a competition in other Departments/Public Service providers is in itself discriminatory contrary to the Acts governing this investigation.
4.3.3. I note that while the complainant's request for review was initially refused, she was granted a review by a named person who was not initially involved in the selection process. I have found nothing to suggest that this initial refusal was because of a discriminatory approach.
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has failed to establish a prima facie case of discrimination on the gender and/or family status ground.
5.3. I find that the complainant has failed to establish a prima facie case of discriminatory dismissal.
16 November 2011