EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012-074
(represented by SIPTU)
Dublin City Council
(represented by Byrne Wallace Solicitors)
File Reference: EE/2008/770
Date of Issue: 19th June 2012
Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment, S. 6(2)(a) - gender ground, S. 6(2)(b) - marital status, S. 6(2)(c) - family status, S. 8(1)(d) and S. 8(8) - promotion, S. 85A - Burden of proof, no prima facie case.
This dispute involves a claim by a complainant that she was discriminated against by the above named respondent on the gender, marital status and family status, in terms of section 6(1) & 6(2)(a) (b) and (c), contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to promotion.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 14th November 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, 1998-2011, the Director delegated the case on the 30th June, 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 22nd June 2009 and the 24th November 2011 and from the respondent on the 19th October 2011. A hearing on the complaint was held on the 25th November 2011 and the last correspondence was received on the 29th March 2012.
2 Summary of the Complainant's case
2.1 In early 2008, Dublin City Council invited applications for an interview process to select candidates for the two positions of executive chemist in the central laboratory in the Environment and Engineering Department. The complainant commenced employment with the respondent in 2000 and was at the time, employed as an Assistant Chemist in the Department. She was recruited as a graduate chemist in October 2000 and had been promoted to the role of assistant chemist following an interview in November 2004. The education requirements for the post of executive chemist were as follows:
(a) a primary degree for which Chemistry was taken as a subject throughout the degree course and in the final examination, or an equivalent professional qualification in Chemistry. (This condition did not did not apply to candidates who currently held a permanent position as Assistant Chemist).
(b) At least five years satisfactory experience of which two years relate to one or more of the following:
a. Water, sewage or effluent treatment technologies;
b. operation of pollution control systems;
c. Industrial process technology;
(c) possess a satisfactory knowledge of the law relating to environment protection;
(d) have adequate experience of chemical analysis and supervision of staff in a laboratory;
(e) possess a high standard of technical training and experience.
2.2 It was submitted that the complainant is highly qualified, having Bachelor of Chemistry from Trinity College and an MSc in Engineering Technology from UCD. Her MSc degree included environment engineering, which involved the study of environmental law and environmental impact assessments. In her 7 years working with the respondent she never had an adverse report on her work. She applied for the position of executive chemist because it was a promotional post. She believed that she was the most qualified internal candidate and her experience and qualifications easily surpassed the requirements for the position. She submitted that before the interview process the head of the department Mr. A had made remarks to her at break times about maternity leave and this led her to the conclusion that she was unlikely to get the job because she was seven months pregnant at the time. She said that Mr. A. was concerned about the impact of maternity leave had on the laboratory and that he believed mothers had a higher level of sick leave and there was no provision for cover for such absences. He also had said during a monthly meeting in 2008 that he would not grant any more career breaks. Her concerns were heightened when she discovered that he was one of the three members of the interview board. Mr. A called all the internal candidates to a meeting prior to the interview where he discussed the format of the interview. She said that he also informed them that if the successful candidate was an internal candidate they would be doing the same job as they did prior to the interview.
2.3 The complainant attended the interview on the 15th May 2008 and it lasted 30 minutes and covered the main areas which she expected to arise. She believes that she performed well at the interview and she did not have any difficulty with the questions. She said that she was asked about the instrumentation she used and there was no question asked which she was not expecting. On the 19th May 2008 she was informed that she was placed in seventh place on the panel. The first and second place went to internal candidates and places three to six went to external candidates. She requested information in relation to her performance and the performance of the candidates ahead of her. She was informed that she scored 362 and the average score for the successful candidates was 383.28. There were 4 main areas scored by the interview panel Leadership & Initiative, Decision Making and Judgement, Understanding and Communication, Technical Knowledge & Experience. She said that all her marks were on the low side. She submitted that she had more experience and qualifications in relation to the person who came second. She was also longer in the department than either of the two successful candidates and that she has a Masters degree whereas the successful candidates had Bachelor degrees. In addition the two successful candidates were not married and had no children.
2.4 The complainant's union representative submitted that the posts of executive chemist were posts within an agreement known as Better Local Government (BLG) and therefore there should have been no external candidates. He also submitted that the interview process was a mechanism whereby internal candidates were being assessed for a pay increase and that they would continue to do the same job as they had being doing after their appointment. He said that there were failures within the interview process which he contends renders the interview process discriminatory against the complainant. He submits that Mr. A told the interview board that they had to pick a candidate who had instrumentation experience and the only candidates who could match such experience were the two successful candidates. The union submitted that this "essential criteria" which was not mentioned in the job description or the advertisement for the post became an essential requirement at the instigation of Mr. A so that his chosen candidates could achieve the two top places. He further submitted that the interview board was in breach of the stated policy in relation to interviewing by failing to properly note the complainant raised the fact that she was pregnant and that her duties had changed. In relation to the interview notes, he submitted that the interview board appears to have limited their questions to the lower level duties she was doing while she was on desk duties due to her pregnancy. There appears to have been no questions about the duties she had been performing over the years prior to her pregnancy. In relation to the marking sheets and the marks awarded to the complainant, it was submitted that there was an inconsistency between the notes provided by the interview board and the actual scores awarded.
3. Respondents case
3.1 The respondent denies that the complainant was discriminated against on any of the grounds claimed. The complainant was employed by the respondent since 2000 and was promoted to assistant chemist in 2004. In 2008 the respondent invited candidates for interview for the post of Executive Chemist in the Central Laboratory in the Environment and Engineering Department. There were 2 positions available and there were 14 candidates interviewed. There were 5 internal candidates including the complainant and 9 external candidates. The complainant was informed by letter dated 23 April 2008 that her interview was taking place on the 15th of May 2008 and that it was a competency based interview and marks would be awarded under the following headings:
- Leadership and Initiative 100 marks
- Decision Making and Judgement 100 Marks
- Interpersonal Understanding/Communication 100 Marks
- Technical Knowledge and Expertise 200 Marks
3.2 The members of the interview board were: an administrative officer in the finance department of DCC (Ms. C), the senior scientific officer in the central laboratory and the complainant's boss (Mr. A) and an external interviewer from the Environmental Protection Agency. The HR Department has a Procedures Manual with regard to recruitment and it was followed in respect of the recruitment for this position. Prior to the interview the board was trained. A marking key was given to the interview board for the purpose of marking candidates. Immediately after each interview the candidate's performance at the interviewed was reviewed and marks were awarded under each of the four competencies and then entered on the candidates marking sheet and signed off on by each of the interviewers. It was submitted that the complainant was scored correctly in accordance with the competencies and the set marking system. The complainant received a total of 362 marks and was placed 7th on the panel. The candidates who were placed first and second on the panel were both internal candidates and scored 409 and 403 respectively.
3.3 The respondent denies that there were any discriminatory remarks made to the complainant prior to the interview by a member of the interview board. Mr. A the head of the department where the complainant worked was on the interview board and he held a meeting at which all the five internal candidates attended. The purpose of the meeting was to advise the internal candidates that there were only two posts and that not all of them would be successful and that they should participate fully at the interview. In response to the complainant's statement, that when she discovered Mr. A was on the interview board, she had concerns about the outcome of the interview given the discriminatory remarks that he had made, the respondent submits that she never raised any of these concerns with management before the interview despite having had plenty of notice of the composition of the interview board. The respondent rejects the complainant's contention that the scoring of her at the interview was discriminatory and would have been higher had she not been female, married and attempting to start a family. They submitted that the interview board had extensive interview experience and had participated in comprehensive interview training on several occasions and were trained again just prior to the interviews in question. DCC has a manual for interview boards and the interview board were trained in relation to all the procedures they should follow when interviewing. The trainer also took the interview through the agreed competencies for the position of executive chemist It was submitted that the interview board considered no factors other than the competencies for the post in considering the complainant's performance at the interview and the fact that the complainant was pregnant had no bearing on the decision making of the board. The only member who knew she was pregnant was the head of the department, Mr. A.
3.4 Mr. A, head of the department and senior scientific officer, said that he would never discriminate against a pregnant employee. He said that females are represented at every professional level in the Laboratory. He said that there are 5 executive chemists in the department, four female of these one has children and one male and the Head of Administration has children. He denied that he has ever made remarks about female staff that were out sick. He said that prior to the interview he decided to call a meeting with the five internal candidates. He said he did this because at previous interviews internal candidates, in his view, did less well than external candidates because they tended to give short answers about their jobs implying that he would know about their jobs because he worked there. At the meeting he advised them that there were only two vacancies and there would be some disappointed staff. He advised them to sell themselves and not to assume anything during the interview. He said that he would be quiet happy with any of the internal candidates. He said that one of the posts arose because a female executive chemist who was on a career break for family reasons was refused an extension and she resigned and the other post was vacant since 2004. He said that he has sat on many interview boards and he has always been trained in all aspects of the interview process and likewise he was trained before this interview. Once the candidates had the required educational qualifications they were qualified for competition and qualifications played no further part in the interview. The interview was solely based on the competencies outlined above. He said that no issues came up about her pregnancy except the complainant did state, in response to a question about a typical day by the Chairperson, that due to her current position she was doing desk duties at the time. Mr A. stated that after the complainant informed him of her pregnancy she requested desk duties for health and safety reasons and he had facilitated that request. He said that the complainant performed very well at the interview and at the end the whole panel discussed her performance and she was marked according to the Interview Board Marking Key and her marks were in the good to very good range. He said he was not biased against the complainant nor did her pregnancy influence him or any other member of the panel in the consideration of the marks she should get under each heading. He said that all the candidates were treated the same in relation to all aspects of the interview process. The two successful candidates were internal candidates, a male at number one, and a female at number two. There were 7 people put on the panel 5 female and 2 male. After the results of the interview were released he spoke to the unsuccessful candidates including the complainant and she expressed her disappointment with the results.
3.5 Mr. A denied he ever made discriminatory remarks about women or that he made a remark about women who had a sick child. He never had a difficulty with having pregnant staff in the section he just rearranged the work when staff left on maternity leave. He said that he refused to extend a career break for a woman who was on a career break for two years due to childcare responsibilities. He said that when he granted the career break the person was not replaced and it is assumed by HR if you grant a career break that you have sufficient staff in the section to carry out the work, hence the reason for refusing the extension.
3.6 Ms. C, chair of the board, said that she worked as an Administrative Officer in the Rates department and that she did not have any technical expertise so she dealt with the competency Interpersonal Understanding/Communication. The board had been trained beforehand and all the interviews followed the same structure. Each interviewer had set questions which had been prepared before hand and each candidate was asked the same questions and the other members took notes while she was asking the questions and she took notes for the other members. After the interview they took time out to mark the candidates and decided what marks should be awarded in accordance with the scheme of marking. She said that she could not fully recollect the complainant's interview. She said that she did not notice she was pregnant and her pregnancy had no impact on the marking and she was scored only on her performance at interview.
3.7 Mr. D was the third member of the board and had worked in the EPA at a senior technical level. He said that he covered the technical area. He said that the interview board was looking for a person with instrumentation analysis experience. This work is carried out on a particular piece of equipment known as atomic spectroscopy which was new to the area and the complainant had not much experience on it as the successful candidate because she had moved desk duties during her pregnancy. He said that he did not pursue further questions about this matter when he became aware the complainant was not working on it during her pregnancy. He pursued other technical areas with her. He said that the successful candidates were working on this piece of equipment all of the time and therefore scored higher on the technical marks. He said that the same questions were asked of each candidate and they were all marked in the same way. He said that the interview board were satisfied that the candidates who did best at the interview were placed at number 1 and 2.
3.8 Ms. E, an administrative officer in the Laboratory, stated that she has young children and since she commenced work there that plenty of women have been pregnant. She said that she dealt with HR matters and she did not believe that the department had a high level of sick leave. She said that she went on the same break as Mr. A and she never heard him express any negativity about maternity leave. She said that there is no difference in the way pregnant women or women with young children are treated to anybody else in the department.
3.9 The respondent's solicitor submitted that the complainant had failed to establish a prima facie case of discriminatory treatment on any of the grounds claimed and therefore the burden of proof has not shifted to the respondent to show that it did not act in a discriminatory manner. In support of this contention the solicitor referred me to the jurisprudence of the Labour Court in the case of Southern Health v Mitchell (DEE011/200) and the Equality Officer decision in Kearney v Dept of Environment and Local Government (DEC-E-2003-12) in relation to the evidential burden.
4. Conclusions of the Equality Officer
4.1 I have to consider the complainant's claim that the respondent directly discriminated against her on the gender, marital status and family status grounds in terms of sections 6(1) and 6(2)(a), (b) and (c) of the Employment Equality Acts 1998 and 2008, in contravention of 8(1) of that Act in relation to promotion. I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.
4.2 It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when he 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.
Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:
"(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 her or her, it is for the
respondent to prove the contrary."
The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that she was not discriminated against on the gender, marital status or family status grounds. If the complainant does not discharge the evidential burden, the claim cannot succeed.
4.3 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts 1998 and 2011 provides:
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'')
Section 6(2)(g) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act
referred to as ''the gender ground''),
(b) that they are of different marital status (in this Act referred
to as ''the marital status ground''),
(c) that one has family status and the other does not (in this
Act referred to as ''the family status ground''),
Section 6(2A) provides:
6(2A) "Without prejudice to the generality of subsections (1) and
(2), discrimination on the gender ground shall be taken to occur
where, on a ground related to her pregnancy or maternity leave, a
woman employee is treated, contrary to any statutory requirement,
less favourably than another employee is, has been or would be
And Section 8(8) provides
Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee in
relation to promotion if, on any of the discriminatory grounds --
(a) the employer refuses or deliberately omits to offer or afford
the employee access to opportunities for promotion in
circumstances in which another eligible and qualified person
is offered or afforded such access, or
(b) the employer does not in those circumstances offer or afford
the employee access in the same way to those opportunities".
4.4 In considering the discrimination claim, I will now examine the manner in which the selection processes in relation to the competition was conducted by the respondent in order to establish if there is any evidence to suggest that these processes were applied in a less favourable or discriminatory manner towards the complainant on the gender, marital status and family status grounds. The interview panel consisted of the complainant's boss Mr. A, an administrative employee of the respondent, Ms. C and Mr. D a senior employee of the EPA. The respondent informed all the applicants about 3 weeks before the interview of the date of the interview, the names of the Interview Board and that the interview was competency based and marks would be awarded under the following headings (i) Leadership & Initiative, (ii) Decision Making & Judgement, (iii) Interpersonal Understanding/Communication, and (iv) Technical Knowledge and Experience. I note that the selection for the posts was based solely on performance at interview. Under the various headings the score of the complainant and the two successful candidates were as follows:
Complainant 1st Place 2nd Place
Leadership & Initiative 69 (100) 80 72
Decision Making 67 (100) 67 71
Interpersonal Understanding 76 (100) 82 80
Technical Knowledge 150 (200) 180 180
Interview Board Marking Key
Shows no evidence of ..............................................1 -25
Shows little evidence of .................................26-49
Shows some evidence of .................................50-59
Shows good understanding of...........................60-70
Shows very good understanding of ....................71-90
Shows excellent understanding of .....................91-100
4.5 The complainant submitted that the scoring above did not truly represent the comments made on the scoring sheet. In considering this point, I note the comment on the marking sheet stated the complainant showed good leadership and initiative and the mark of 69 was awarded. It is clear that this mark is within the range provided for in the marking key and there are no inconsistencies between the marks awarded and the comments on the marking sheet. For the other above mentioned competencies I can find no inconsistencies between the marks awarded and the comments of the interviewers. I note the complainant's mark in relation to technical knowledge and experience, which was within the very good range of marks, her mark was 30 points lower than the successful applicants under this heading. The complainant accepted at the hearing that she did not have much experience on the atomic spectroscopy equipment and the applicant who was placed first had such experience. She also stated that she had no experience on the ICP equipment and the other successful candidate had worked on this machine. The members of the interview board who dealt with the technical knowledge and experience heading said that the two successful candidates performed better than the complainant in relation to this aspect of the interview. Having examined all the documentation in relation to the marking, I am satisfied that the marks awarded to the complainant under the different competencies were within the range provided for in the marking scheme above and they were no inconsistencies between the marks awarded and the comments of the interview board. It is a matter for the interview board to award the marks they deem appropriate in respect of an applicants performance at interview and it is also a matter for the interview board to award higher marks to the applicants they believe best meets the requirements for the position so long as the selection is not tainted by discrimination. I can find no evidence that the selection process was in any way unfair to the complainant or tainted by discrimination.
4.6 In considering this matter I have taken cognisance of the case of Client Logic Logic t/a UCAL -v- Kulwant Gill EDA0817 where the Labour Court held that "Finally, the Court has previously held that in cases alleging an infringement of equality law in the filling of posts, it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result". It is a principle that has consistently been followed by both Equality Officers of this Tribunal and the Labour Court. It is not the Equality Officer's role to examine whether the most meritorious candidate was successful in a selection process. Rather, the Equality Officer's role is to examine and decide whether or not the selection process is tainted by discrimination i.e. in this case on the age ground. In the case of Galway City Partnership -v- Josephine O'Halloran EDA077 the Labour Court held that "On the evidence the Court is satisfied that the interview board was properly constituted and conducted its business in line with accepted good practice. The Court has previously held that where this is found to be the case, and in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relative merits for those arrived at by the interview board ..... On the evidence before it the Court can find nothing to indicate any element of irregularity or unfairness in the selection process as it was applied to the complainant ".
4.7 Having regard to the evidence adduced, the complainant has not established that there was any "manifest irrationality" or unfairness in terms of the manner in which she was assessed by the interview board in comparison to the successful candidates. In relation to the claim, that Mr. A made discriminatory remarks about women with children taking too much sick leave and the perception that maternity caused a problem in running the department, I am not satisfied from the evidence that any such remarks were made by Mr. A. For all of the above reasons I find that the complainant has failed to establish a prima facie case of discrimination on the gender, marital status and family status grounds in relation to promotion to the position of executive chemist.
5.1 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 gender, marital status and family status grounds pursuant to section 6(2)(a) (b) and (c) of the Acts and in terms of section 8(6) of the Acts.
19th June 2012