Employment Equality Acts 1998-2011
DECISION NO: DEC-E2013-054
Susan O' Kelly
(Represented by Breiffni O' Neill, HR Consultant)
- v -
WYG Engineering (Ireland) Ltd.
File reference: EE/2011/006
Date of issue: 12 June 2013
Employment Equality Acts - discriminatory treatment - gender ground - family status ground - marital status ground - access to employment - prima facie case
1.1. This dispute concerns a claim by Ms. Susan O' Kelly (hereafter "the complainant") that she was subjected to discriminatory treatment in relation to access to the post of finance manager by WYG Engineering Ireland Ltd. (hereafter "the respondent" which is in liquidation) contrary to the Employment Equality Acts on the grounds of her gender, marital status and family status. The complainant stated that she was the most suitable candidate for the post based on her qualifications, experience and performance at interview but that a male employee more junior in the company and with lesser qualifications was successful for the position.
1.2. The complainant referred her claim of discrimination to the Director of the Equality Tribunal on 7 January 2011 under the Employment Equality Acts. The claim was made on the gender, marital status and family ground. In accordance with his powers under section 75 of the Acts, the Director then delegated this case to Valerie Murtagh- an Equality Officer - on 16 January 2013 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 20 May 2013.
2. Case for the Complainant
2.1. The complainant commenced employment with PH McCarthy Consulting Engineers as a management accountant on 13 February 2002. This company was taken over by the respondent in October 2007. The complainant states that she performed well in her post and always got excellent appraisals from her line manager. The respondent entered into collective consultation with staff in May 2010 due to the need to restructure the company. Towards the end of May 2010, the complainant was informed that her role as an accountant was at risk. She was also informed that her colleagues' roles, which were around the same salary level as her, were also at risk i.e. a qualified accountant and a part-qualified accountant both male. In June 2010, all three were informed that the respondent was going to create two new finance managers roles (one at a salary of circa 43,000 focusing on the balance sheet and the other role at a salary of circa 55,000 focusing on profit and loss). The three employees had the opportunity to review the job specifications and put themselves forward to be interviewed if they were interested. The complainant states that it was clear that all the duties of the three accountants/part qualified accountant had been divided into two jobs, one focusing on the balance sheet and the other on the profit and loss. The male qualified accountant expressed no interest in the role and as a result was made redundant. The complainant states that she submitted her CV and cover letter for the role which suited her qualification i.e. the role of Finance Manager focusing on the profit and loss. The male part qualified accountant also applied for the role. The complainant states that he was single with no children.
2.2. Interviews for the post which were competency based were held on 12 July 2010. The interviewers were Mr. B, the Finance Director, Ms. T, Human Resources and Ms. W, the International Finance Director. Interviews lasted one and half hours for each of the two candidates. The complainant states that during her interview, Mr. B to whom she was directly reporting stared out the window and yawned on several occasions throughout the interview. The complainant also submits that Mr. B in or around April/May 2010 on two separate occasions, prior to the collective consultation being formally announced, asked the complainant how many children she had. The complainant states that on both occasions, she replied she had one child and that it was not her intention to have any more children as even at that time she felt this question was being asked for a reason other than general conversation. On the morning of 13 July 2010, the complainant was informed that she was not successful for the position due to the fact that she was technically less competent than the other part qualified male candidate. The complainant contends that early that afternoon, disturbed and confused by those comments, she requested a copy of the marks from the interview. She states that she explained her concerns as she was more qualified and had many more years experience in the Consulting Engineering sector than the successful male appointee. The complainant states that after several e-mails sent by her to HR and the International Finance director requesting feedback and marks, they continually cited excuses due to their busy work schedules and the need for notes to be typed up etc that they were not in a position to respond. She did eventually receive her scores late in the afternoon of 15 July, 2010.
2.3 The complainant contends that upon reviewing the typed notes, she could see a number of deficiencies in the process. She stated that the most significant being the incorrect noting by the interview panel of her response to the question under the "financial acumen" competency. It states "we asked for a situation where you improved the working capital or profitability of the business. Given that this role is business support focused, this was a key opportunity to demonstrate a positive impact on the business. The example provided in adapting the depreciation demonstrated a lower level of competency than required as it did not have a financial impact on the business." The complainant scored "1" point for this answer as it "fails to meet the competency requirements - development needed within this competency". The complainant contends that two issues were clear; firstly this was not the answer which she gave at interview as she had no dealings with depreciation apart from a standard journal each month. This journal took five minutes a month to post. The complainant contends that the calculations had been given to her by the interim Finance Manager, Mr. S before his contract ended in late 2009. During his time, he adapted and updated fixed assets and depreciation calculations for PH McCarthy (PH was taken over by the respondent in 2008). Depreciation for all the other offices within Ireland was dealt with by the other male candidate who was part qualified. The complainant submits that this answer is totally incorrect from a technical point of view having neither an impact on profitability or working capital. The complainant submits that having been given the competencies in advance of the interview, she had prepared responses/examples from her current role at that time and in previous roles she worked in. She states that her actual answer to this question related to improvements she made to the invoicing process as well as involvements in improving the credit control processes both having a direct impact on profitability and working capital.
2.4 The complainant contends that at the start of the interview, before the competency based questioning commenced, she gave several high level examples on areas such as team working, personal effectiveness and innovation. She states that when the formal questioning started and she was asked specific questions in relation to these competencies, she referred back to the high level examples at the start of the interview which she already mentioned as well as going on to mention other lower level examples. The complainant submits that the interview panel chose to write the low level examples as back-up for the marks given to her on the scoring sheet. The complainant contends that the entire process was conducted so as to favour the successful candidate who is male and single and was only part qualified. The complainant states that she is aware that the successful candidate failed his exams a number of times and was at that time repeating 4/5 exams of the ACCA course. In summary, the complainant states that the selection criteria were neither fair nor transparent, in that, there was no reference to her qualifications or experience due to nine years service. The post was advertised as a full time position although she had been working on a four day week since January 2010 and there was no discussion with her as to whether she would be willing to do it full time or whether it would be possible to do the role in four days. The complainant states that the interview process was unfair due to high level responses being omitted from the scoring sheet. She contends that the scores retained of the interview are incorrect and in that regard, the financial acumen competency does not reflect her actual answer to this question. The complainant states that she had the CIMA qualification and had much longer relevant experience in the consulting engineering area than the successful candidate and that the selection process was flawed and that marks were manipulated in order to give the post to the male candidate. The complainant contends that she was discriminated against on grounds of gender, marital status and family status in relation to access to the post of finance manager and that she has established a prima facie case in this regard. The complainant was made redundant in August 2010.
3. Summary of Respondent's case
3.1 The respondent company is in liquidation since August 2012 but furnished the Tribunal with a submission through their legal representatives in early August 2011 on the matter. It states that the respondent is a global consultancy, specialising in infrastructure and advisory services, working in partnership with clients in over forty countries throughout the world. The services provided by the respondent are directly related to the construction industry. The respondent's parent company is based in Leeds, England. Following the severe decline in the construction industry, the company implemented a number of redundancies at its Irish base. When the restructuring at the company was announced in May 2010, all employees were advised that they were 'at risk' of redundancy. The Finance team was informed that interviews for the remaining posts would be competency based and would relate to the core business of the company. The complainant was invited to apply for two roles, however, she subsequently chose only to apply for one of the roles. The respondent states that it is not apparent why the complainant did not apply for the other suitable role which would have increased her chances of success. The respondent contends that the role for which the complainant applied did not require a qualified accountant rather the position required a certain level of technical and behavioural competency. In relation to the complainant's contention that her line manager, Mr. B often asked about her family; the respondent submits that such 'conversation' was entirely appropriate and consistent with the type of conversation Mr. B had with all employees. The respondent states that it is notable that the complainant did not raise this issue at the time.
3.2 The respondent states that the complainant's interview took place on 12 July and on the following day she was informed that her application was not successful. On 15 July, she was given the interview notes and marks. The respondent states that there were two candidates interviewed for the role. Each candidate was brought through their CV and then requested to give examples of situations where they demonstrated the specific competencies. Notes were taken by all three members of the interview panel and the scoring was agreed at the end of each interview. The respondent contends that the complainant scored a combination of 1's (fails to meet the competency requirements - development needed within this competency) and 2's (meets the requirement of the competency). However, the successful applicant scored a combination of 2's (meets the requirement of the competency), 3's (clearly exceeds the requirement of the competency) and 4's (demonstrates exceptional standards of performance within the competency). It was explained to the complainant that she had not shown the required level of competency required for the role, this was particularly evident in relation to the competencies on financial acumen and innovation. The respondent submits that during the feedback session with the complainant, it was outlined that her interview showed that she was operating at a level below that required for the role which was a more transactional level rather than really understanding the core business issues necessary to help support the business.
3.3 The respondent submits that the complainant's performance at interview was considered to be reasonable. However, it states that some of the questions posed to her had to be re-phrased a number of times before she could provide an answer. For some of the questions, the complainant was unable to give an adequate response. The respondent contends that when asked for examples supporting her comments, she referred to previous examples already given. The respondent states that at one point during the interview, the complainant herself noted that she lacked the in-depth knowledge of the position the respondent was attempting to fill. The respondent submits that financial acumen was one of the four competencies the complainant did not meet. It contends that the answer she provided covered an improvement to a depreciation spreadsheet which did not provide evidence of the required level of the competency. The respondent submits that the complainant was given more than one opportunity to provide examples of her financial acumen, however, the example of depreciation was the only one forthcoming. The respondent contends that the successful candidate met or exceeded the criteria on all competencies and that the decision to hire this candidate over the complainant was based purely on meeting the required level of the competencies. The respondent rejects the complainant's claim that she was not selected for the position because she is female and a mother of a young child and states that the interview panel consisted of three married people, all with children, two of whom were working mothers. The respondent denies the allegation by the complainant that it discriminated against her, in that, the post was advertised as a full time position and at the time she was working a four day week. It submits that this working arrangement of her doing a four day week was never intended to be long-term; it was facilitated by the respondent following a request from the complainant in December 2009. The four day week was agreed orally and it was understood that it would be removed if the business need required it. The respondent completely denies the allegation of discrimination and contends that there is no basis for the claim.
4. Conclusions of Equality Officer
4.1 I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court 1, whilst examining the circumstances in which the probative burden of proof operates, held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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 Overall, in taking into consideration the written submissions and the testimony given at the hearing, I am satisfied that the complainant has established a prima facie case of discrimination in relation to access to the position of finance manager on grounds of gender, marital status and family status on the basis that (i) the complainant is a fully qualified accountant by CIMA (ii) she was with the company 9 years as opposed to the successful candidate who was with the company only 4 years and was repeating various exams of ACCA which he had failed on numerous attempts and (iii) the alleged discriminatory questions asked by Mr. B regarding the complainant's family and the number of children she had. I am also satisfied given the testimony of the complainant that she had received excellent appraisals from her line manager up to this point. I am satisfied given the totality of the evidence that the interview notes and marking system were manipulated so as to favour the male part qualified candidate. The decision of the Northern Ireland Court of Appeal in Wallace v South Eastern Education and Library Board NI 38  IRLR 193 is authority for the proposition that where a successful candidate for appointment to a post is a man and the unsuccessful but better qualified candidate is a woman, that fact alone is sufficient to establish a prima facie case of discrimination. On the day of the hearing, the complainant came across as a very cogent and credible witness and was clear and consistent in her testimony. She stated that she never mentioned depreciation at any point during the interview although the interview notes purport to imply that her example under the financial acumen competency related to a depreciation spreadsheet. She stated that it was the successful candidate that dealt with depreciation in the course of his work. Having considered all the evidence, I am satisfied that the complainant has established a prima facie case of discrimination in relation to access to the finance manager post and the respondent has failed to rebut the inference. Therefore, I find in favour of the complainant.
5. Decision of the Equality Officer
In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that the complainant was discriminated against by the respondent in relation to access to the post of finance manager on grounds of her gender, marital status and family status, in terms of section 6(2) of the Acts and contrary to section 8 of the Acts.
I, therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998 - 2011 that the respondent pay to the complainant the sum of €45,000 by way of compensation for the distress suffered and the effects of the discriminatory treatment on her. This amount equates to approximately one year's salary. This compensation does not contain any element of remuneration and therefore not subject to PAYE/PRSI.
12 June, 2013
1 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.