DECISION NO: DEC-E/2013/155
(Represented by Gallagher Shatter Solicitors)
Irish Prison Service
(Represented by Chief State Solicitors Office)
FILE NO: EE/2011/292
DATE OF ISSUE: 19th of November, 2013
This dispute involves a claim by Ms. Anne Delaney that she was discriminated against by the Irish Prison Service, on the grounds of gender, in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008, in relation to promotion, training and conditions of employment.
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 17th of February, 2011 alleging that the respondent had discriminated against her on grounds of gender when she was unsuccessful in her application for a number of posts to which junior or less experienced male officers were appointed.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 19th of February, 2013 to me, Orla Jones, 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 both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 4th and 5th of July, 2013. Final information in relation to this matter was received on 27th of August, 2013.
3. Summary of complainant’s case
3.1 The complainant submits that he was employed by the respondent since 7th of January 1991. She worked as a Prison Officer in St. Patricks Institution for ten years and subsequently in the Midlands Prison for a further ten years.
3.2 The complainant submits that she was discriminated against on grounds of gender in relation to a number of applications for allowance carrying posts as follows:
- In 2001, competition for a gym instructor course. She was overlooked in favour of two junior male officers.
- In April 2009, application for a post in the Operational Support Group. She was unsuccessful and a junior male officer was appointed to the post.
- In August 2010 she was successful in her application for the post of Acting ACO (based on her seniority) but was discouraged from taking up the posts by Deputy Governor C who stated that he had ‘too many female ACO’s’ . Although she was placed on top of the panel for this post the complainant was never placed on the permanent roster for the position and therefore did not receive the accompanying allowance.
- In September 2010, competition for a post in the Detail Office. Despite assurance of her suitability from Deputy Governor C she was unsuccessful. Two senior male officers with less experience were appointed.
3.3 It is submitted that the complainant had more experience in the Detail office than either of the two successful candidates who were both male. The complainant had 443 days experience in the Detail office.
4. Summary of respondent’s case
4.1 The respondent submits that the complainant is a valued member of the prison staff whose competence is recognised and appreciated.
4.2 It is submitted that the selection criteria used for Detail office competition ‘seniority and suitability’. It is submitted that previous experience in the Detail office was considered under the suitability criterion and that the emphasis was on previous experience in the area together with seniority.
4.3 It is submitted that the complainant had extensive experience in the Detail office but was not successful as she was less senior than the two successful candidates.
4.4 It is submitted that the two successful candidates were more senior to the complainant and that despite her being more experienced she did not meet the seniority criterion. It is submitted that the successful candidates had been engaged in that office on 119 occasions during the previous 12 months and the other had been engaged there on 32 occasions during the same period and on 177 occasions during the previous 24 months.
5. Findings and Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of gender, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to the failure to appoint her to a number of posts in the Midlands prison. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 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 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. 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.”
5.3 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 primafacie 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.”
5.4 In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.
The Labour Court went on to say in that case:
"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."
5.5 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 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,..
5.6 Time Limits
5.6.1 The respondent accepts that the complainants claim in respect of the Detail Office post held in September 2010 is within time but does not accept that the complaints in respect of three further competitions held in 2001, 2009 and August 2010 are within time.
Section 77(5)(a) of the Acts provides as follows:
“Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.
Section 77(6A) of the Acts provides as follows:
“For the purposes of this section –
(a) discrimination or victimisation occurs –
(i) if the act constituting it extends over a period, at the end of the
5.6.2 The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal unless the acts relied on constitute ongoing discriminatory treatment. The referral Form EEI was received by the Tribunal on the 17th of February, 2011 and the last date of discrimination was 21st of September, 2010, thus the complaint form was submitted within the 6 months time period specified in the Acts.
5.6.3 The respondent submits that Section 77 (5)(a) of the Employment Equality Acts provides that where there has been a series of incidents of alleged discrimination which constitute alleged ongoing discriminatory treatment the time limit runs from the last such incident. The respondent refers to the Labour Court Decision in County Cork VEC V Hurley EDA24/2011 and to a recent decision of the Tribunal in McMahon Vs Department of Justice Equality and Law Reform DEC-E2012-186, and argues that the three earlier competitions can only be considered if a decision is made that the complainant was discriminated against in respect of the most recent competition. It is submitted that a finding of no discrimination in respect of the most recent competition would rule out any consideration of the earlier competitions. In Hurley the Court ruled that
“occurrences outside the limit could only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make them all part of a continuum”.
5.6.4 Section 77(5)(a) provides for the extension of a claim in circumstances where the complainant refers a complaint, which has been lodged within the required six months of the latest incident, and the complainant can show facts supporting an on-going situation of such occurrence. Section 77(6A)(i) goes on to provide for a case of continuing discrimination with the time limit referable to the point at which the discrimination ended. The effect of these provisions is that the complainant can seek redress in respect of occurrences outside of the prescribed period, where the acts relied on constitute ongoing discriminatory treatment. Thus I must now consider whether there was ongoing discrimination and whether all of the incidents were interlinked.
5.6.5 In considering the issue of whether the matters complained about constitute a chain of linked events or if all of the instances are separate events, I have taken into consideration the Labour Court reasoning in the case of County Louth VEC –v- Don Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:
“Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.
5.6.6 In Department of Health and Children v Gillen EDA0412 the Court considered an application to include a claim of discrimination, which occurred outside the time limit, the Court found:
“The first of these relates to whether the complaint in relation to the interview held on the 22nd of November, 1999, was in time. Section 77(5) of the Employment Equality Act states that
“a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of the occurrence, or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
The complainant’s complaint is that after he had reached the age of fifty he was no longer considered by the appellant as being suitable for promotion purely on age grounds. On each occasion he competed, he was rejected by the appellant on the grounds that he was over fifty years of age. The Department submits that if the complainant is correct (which it does not accept) then he was subjected to two separate and distinct acts of discrimination, in two separate and distinct competitions by two separate bodies.
In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground”.
5.6.7 I am also guided by the Labour Courts decision in County Cork VEC Vs Ann Hurley EDA1124 which considered the matter of ongoing discrimination where the Court found as follows
It is clear ……… that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.
The Court went on to state that
it appears that the admissibility of the claim in so far as it relates to alleged acts of victimisation in the period …… depends upon the validity of the claims of victimisation which allegedly occurred in the period after that date. Their admissibility is also dependent upon some link being established between the occurrences outside the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.
5.6.8 It is clear from the above, that in order to consider the earlier alleged incidents of discrimination, I must firstly decide whether the most recent alleged incident of discrimination is proven. In addition, I must be satisfied that the complainant has established a link between the incidents and that they can be considered as separate manifestations of the same disposition to discriminate.
5.7 Competition for allowance carrying post in the Detail Office
5.7.1 The complainant advised the hearing that she had stepped down from her post as Acting ACO on the wishes of Deputy Governor C who had asked her to do so as he stated that he had ‘too many female ACO’s’. The complainant stated that Deputy Governor C indicated to her that if she were to step down she would be successful in her application for a post in the Detail Office. The complainant advised the hearing that she subsequently applied for the post in the Detail Office and on 21st of September 2010 was notified that she was unsuccessful in her application. The complainant advised the hearing that two male officers with less experience than her were appointed despite her being assured that she would get this post by Deputy Governor C. Deputy Governor C concedes that he did ask the complainant to step down from the post as Acting ACO due to the fact that he had ‘too many female ACO’s’ (this is examined in detail below) but denies that he had assured the complainant of her success in the Detail office post.
5.7.2 The complainant advised the hearing that she was unsuccessful in her application for the allowance carrying post of Detail Officer. She stated that she was more experienced than the two successful candidates who were both male.
5.7.3 At the hearing questions were put to the respondent in respect of the competition for the Detail Office post. The respondent advised the hearing that the successful candidates were selected by a Panel without interview. The respondent stated that the Selection Board was made up of three membersGovernor D, Chief Officer C and Mr. M. Governor D advised the hearing that the applications for this post consisted of half page documents which he and the other two members of the Board went through using the criteria of ‘seniority and suitability’. Governor D stated that the ‘suitability’ looked at was ‘experience in the detail office’. The respondent has submitted that while the complainant has more experience in the Detail office than the successful candidates she was junior to them and so did not fulfill the ‘seniority criteria’.
5.7.4 The complainant does not dispute that she was junior to the two successful candidates but submits that she had more experience in the Detail office than either of them having worked there on a total of 443 occasions.
5.8 Seniority followed by Suitability or Seniority and Suitability
5.8.1 There was some discussion at the hearing as to whether such allowance carrying posts are in the normal course of events filled on the basis of ‘seniority subject to suitability’ rather than ‘seniority and suitability’. The former produces a situation where the most senior candidate is considered for the post and unless completely unsuitable is then offered that post. In describing what can be considered as completely unsuitable Mr. C of the Prison Officers Association cited an example of where a person is widely known for other reasons to be unsuitable for promotion perhaps due to personal problems or where a person may be known to have a drink problem. Mr. C advised the hearing that it is only in such extreme circumstances that the most senior officer is not considered to be suitable for appointment to a post. Mr. C had stated that he had intervened on behalf of the complainant in relation to the competition as he had at the time believed her to be more senior than the two successful male candidates. Mr. C added that he had raised the issue that the criteria used in such situations had always been ‘seniority subject to suitability’ and that ‘seniority and suitability’ should not have been applied in respect of this competition. However as it had now emerged that the complainant was less senior than the two successful candidates she would not have been disadvantaged by a move from ‘seniority subject to suitability’ to ‘seniority and suitability’. Thus there was no argument put forward on behalf of the complainant in relation to the criteria which the respondent submits was followed in respect of the competition that is ‘seniority and suitability’.
5.8.2 The respondent at the hearing argued that the policy used at the time of the competition, the subject matter of this complaint, was ‘seniority and suitability’. The respondent also advised the hearing that if it had done anything wrong the POA would have intervened on behalf of the complainant as they had intervened on other occasions on behalf of members. The POA advised the hearing that they had intervened on behalf of the complainant and two other more senior female prison officers who were also unsuccessful in this competition and had had met with the respondent in order to raise the issue of gender discrimination. The POA went on to state that this matter had also been the subject of correspondence from the POA to the respondent and that it had raised the issue that the usual criteria of ‘seniority with due regard to suitability’ had not been followed in relation to the Detail Officer post and had also raised the issue of gender discrimination.
5.8.3 The respondent at the hearing stated that the POA had failed to follow up on this matter and denied that such communications had taken place, however, following the hearing it emerged through submissions from both parties that such communications and correspondence had taken place between the POA and the respondent but that it had been overlooked by the respondent at the time and had not been replied to by the respondent.
5.8.4 In addition, it emerged at the hearing that, of the two successful candidates Mr. G the most senior but the less experienced of the two candidates was ranked first and Mr. E the less senior but more experienced candidate was ranked second. The respondent submitted that the complainant would have been the next most suitable candidate and would have been successful were it not for her seniority.
5.8.5 Suitability Criterion–Experience in the Detail Office
The respondent has submitted that the ‘level of experience in the detail office’ was used to assess candidates ‘suitability’. The complainant advised the hearing that she had worked in the detail office on 443 occasions compared to the successful candidates the first of whom had worked there on 119 occasions and the second on 333 occasions.
5.9 Level of experience required
5.9.1 At the hearing I questioned Governor D regarding the level of experience in the Detail office, required for the post and how it was quantified or measured. Governor D stated that the level of experience of each candidate was not written down or documented at the time, but he submitted to the hearing a table of figures with the level of experience of some of the candidates measured in the number of days they were assigned to work in the Detail Office. The respondent when questioned advised the hearing that this table was prepared recently and for the purpose of the hearing and only included some of the candidates who applied for the post. Upon questioning it emerged that this table contained details of the successful candidates only as well as those who had appealed the competition results. Any candidate who was unsuccessful but who didn’t appeal was not included in the table. The complainant at the hearing stated that the figures given in this table for the number of days she had worked in the detail office were incorrect and stated that she had worked in the detail office on 443 occasions, more than twice as many occasions as those recorded in the table.
5.9.2 The respondent conceded that these figures in the table were not exact and did not represent the level of experience of all candidates who applied for the post, only a selection. In addition it was clarified that this table was only prepared recently and for the purpose of the hearing. Governor D, at the hearing stated that the level of experience or number of days spent in the detail office by each candidate had not been quantified or documented at the time of the competition. When asked at the hearing how a decision was made as to who had more experience in the detail office Governor D replied that he and Mr. M would ask Mr. C who had himself worked in the detail Office and so was able to tell the other Board members which of the candidates had experience there and how much and which candidates had no experience. This raises a question in relation to candidates whose experience in the detail office may have been prior to Mr. C’s time working there and how that could be quantified or recorded. In addition it leaves a scope for abuse as the level of experience is not quantified or measurable against each candidate but rather is roughly assessed by reference to Mr. C and his recollection as to how many days a candidate spent working in the detail office during his tenure there.
5.9.3 It was put to the respondent at the hearing that this was not an accurate or measurable means by which to assess the level of experience of candidates. There was no scoring matrix used or any accurate means of measuring or quantifying how any candidate scored as regards the criteria of ‘suitability’ which it is submitted referred to ‘previous experience in the detail office’. In addition it is clear that the criterion has already shifted from level of experience in the Detail office to level of experience in the Detail office during the tenure of Mr. C.
5.9.4 Governor D also advised the hearing that a candidate would be considered as having met the criteria if Mr. C advised the selection Board that they had a lot of experience in the Detail office. It is clear that this method for assessing the level of experience of candidates is not an exact science and leaves plenty of scope for human error and/or manipulation. In addition, it defeats the purpose of having three Board members if only one of them is in possession of the information regarding the level of experience in the Detail Office, of each candidate. This does not necessarily imply that the process would be more favourable to one candidate or candidates of one gender over another but does lead me to make inferences regarding the accuracy and transparency of the information on which the decision regarding ‘suitability’ was made.
5.9.5 It is clear that the selection process in this case was not transparent and it is difficult to know what process was followed. I note the complainant submitted that she was the most suitable candidate based on her level of experience. In O’Halloran v Galway City Partnership EDA077, the Labour Court stated:
“Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (see Wallace v. South Eastern Education and Library Board  NI 38 ;  IRLR 193 ). However the qualifications or criteria which is to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.”
5.9.6 I must also bear in mind the fact that the reason for an impugned decision may be conscious or subconscious and refer to the approach taken by the Labour Court in Nevins Murphy Flood V Portroe Stevedores Limited  16 ELRDet. No. EDA051
“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.
5.9.7 The respondent does not dispute the fact that the complainant had more experience in the detail office than any of the other candidates and states that she would have been successful but for her seniority. However the fact that the selection process applied is so lacking in transparency and the fact that no records or marking scheme was kept leads me to make inferences regarding the fairness of the selection process.
5.9.8 The application of the consistory method of promotion was considered inAn Employee v A Government Department  17 E.L.R. 225. This was a case in which a recovering alcoholic claimed to have suffered discrimination on grounds of disability in the filling of promotional posts. The posts in issue were filled on the basis of seniority and suitability through a system of promotion operated by the Civil Service in which candidates were considered by a group of senior managers in what was known as a consistory. The Complainant in that case was the most senior applicant but he was deemed to be unsuitable for unstated reasons.
In considering the circumstances in which the probative burden shifts, the Court held as follows: -
There is no exhaustive list of factors which can give rise to an inference of discrimination. However in cases involving promotion, a lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can, in themselves, give rise to such an inference. In this case the process was wholly lacking in transparency and a candidate's chances of success were as much dependant on their principal officer's power of advocacy and his or her standing with their peers, as on the candidate’s ability to undertake the duties of the higher post.
5.9.9 In the present case it is clear that there was a lack of transparency in the selection process and that a candidates chances of success were dependant on Mr. C’s recollection of the amount of time each candidate spent working in the detail office during his tenure in that office. If it had been the case that a minimum number of days working in the detail office had been the criterion to be reached this at least would have been a quantifiable means of assessing which candidates met this criterion but as no such quantifiable yardstick was set it is impossible to state which candidates met or exceeded this criterion.
5.9.10 The Labour Court in Nevins Murphy Flood V Portroe Stevedores Limited  16 ELRDet. No. EDA051 made reference to the quality of evidence to be expected from a respondent who bears the burden of proof. In adopting the reasoning of the Employment Appeals Tribunal in Britain, the Court, in Barton v Investec Henderson Crosthwaite  IRLR 322, held that
since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden
5.9.11 It is clear from the evidence submitted that there was a complete lack of transparency in the selection process used. It is clear from the evidence that the only document in front of the selection panel were the applicants written applications. I note that the respondent states that there was a selection criteria of ‘seniority and suitability’ as outlined above. It is surprising then that if there were criteria which had to be applied by each member of the selection board that there was no written record of it. It is also difficult to know how it was applied by the selection board given that there were no notes taken or marks awarded. Thus I cannot see how the respondent was able to determine that the successful candidates met the ‘suitability’ criteria when such criteria was not clearly defined or in any way measurable. In addition, the decision regarding whether or not a candidate fulfilled the suitability criteria was completely reliant upon the word of Mr. C and his recollection of how much experience each candidate had in the detail office during his tenure in that office. Furthermore, it emerged at the hearing that the half page applications on which the Selection Panel relied to make their decision had been contained in an envelope which had since been misplaced and so could not be produced in evidence at the hearing.
5.9.12 There is also a dispute as to whether the criteria allegedly applied by the respondent was in keeping with the usual practice at the time or whether a deviation from the usual practice had occurred in order to ensure that more senior female candidates were not placed at the top of the panel and ensuring that the less senior male candidates were placed at the top of the panel. Although the complainant in this case is less senior than the successful candidates it is difficult to see from the way in which the criteria was applied whether the successful candidates who were more senior and male could in fact be considered as having met the suitability criteria given that the complainant was more experienced than the two successful male candidates.
5.9.13 In addition the respondent has submitted that the complainant did not meet the criteria for the post, due to the fact that she was less senior than the successful candidates whom it is submitted also met the suitability criteria but were more senior to the complainant. It is clear from my examination of the evidence adduced in relation to the suitability criteria that no clear or transparent process was followed regarding the assessment of candidates’ level of experience in the detail office so it is unclear how any decision was taken as to the suitability of one candidate over another.
5.9.14 In considering the circumstances of this case I am mindful of the Labour Court Determination EDA 1322 Board of Management…. which refers to the fact that once a prima facie case has been made out and the onus has shifted to the respondent and states
This requires the Respondent to show a complete dissonance between the gender of the complainant and the impugned act or omission alleged to constitute discrimination.
5.9.15 The respondent has submitted that the complainant did meet the suitability criterion but that it was her seniority which resulted in her being ranked below the successful male candidates. The transparency or otherwise of the suitability criterion does not change the complainant’s seniority relative to the two successful candidates. However the lack of transparency in the selection process and in the application of the suitability criterion may have affected the way in which the two successful male candidates were considered to have met the suitability criteria and the fact that no records or marking scheme is available does not provide any evidence of how the successful candidates were deemed to have met the criterion of suitability. It is accepted by all parties that the complainant was the most experienced candidate and it could well be that in the absence of any measurement or records and depending on the level of experience required she may have ranked higher in seniority relative to other candidates with her level of experience or due to the more senior candidates not reaching that level of suitability. The complainant argued that the criteria for suitability based on level of experience in the Detail Office, was not met in respect of the successful candidates and that she who had a substantial level of experience in the Detail Office was not successful due to her gender despite being assured of her suitability for the post. Governor C when questioned at the hearing stated that he wasn’t clear on whether it was seniority or suitability which was most important for this post. It is not clear in what manner the criteria of seniority and suitability were applied due to the fact that there are no records of or marking scheme available however what is clear is that the criteria which was applied and whether seniority took priority or suitability took priority, resulted in the most senior females and the most experienced female being unsuccessful.
5.9.16 Bearing in mind the totality of the evidence adduced in relation to this matter I am satisfied that the complainant in this case has established a prima facie case of discrimination on the ground of gender in relation to this matter which the respondent has failed to rebut. Thus I am satisfied that the complainant was discriminated against on the ground of gender in relation to this matter (the post in the detail office).
5.10 Link between ACO competition and competition for Detail Officer Post
5.10.1 The complainant submits that prior to her application for the allowance carrying post in the detail office she had succeeded (based on her seniority) in her application for the post of Acting ACO. The complainant at the hearing stated that she had been placed at the top of the panel for acting ACO but that she had never been placed on the permanent roster for the post and so had not accrued the allowance which went with the post. The complainant advised the hearing that Deputy Governor C had asked her to step down from the post of Acting ACO on the basis that there was a post coming up in the Detail Office for which she would be highly suitable. The complainant at the hearing stated that based on this she stepped down from the ACO post in accordance with Deputy Governor C’s wishes. This version of events is corroborated by Ms. S who was also in attendance at that meeting when Deputy Governor C advised both women that he had too many female ACO’s. Deputy Governor C does not deny that he made this comment but states that he did not promise the upcoming Detail officer post to the complainant. Deputy Governor C advised the hearing that he told the complainant and Ms. S that he had too many female ACO’s and that they accepted this and stepped down from the posts willingly. Deputy Governor C when questioned as to whether he had offered the complainant anything in return for her giving up an allowance carrying post replied that he did not. Deputy Governor C also stated that it was the complainant who brought up the subject of the upcoming Detail Office post and that he had not raised the issue. Both Ms. D and Ms. S advised the hearing that it was Deputy Governor C who had brought up Detail Office post by way of an enticement to Ms. D to step down from the ACO post. The complainant stated that she stepped down as she felt she was being encouraged to do so on the basis that she was going to get the Detail Office post. Ms S at the hearing stated that she was of the opinion that Ms. D would be ‘ok’, as she had been more or less offered the Detail Office post by Deputy Governor C but was worried as to her own position, as she had been given no such guarantee. Ms. S stated that she stepped down as she felt it might be held against her in the future if she did not comply with Deputy Governor C ‘s wishes.
5.10.2 In examining whether this ACO competition can be considered to be linked to the Detail office competition it is clear from the evidence adduced that the complainant stepped down from the ACO post in accordance with Deputy Governor C’s wishes. The complainant and Ms. S have submitted that the complainant did this as Deputy Governor C had assured her of the post in the detail office. Deputy Governor C at the hearing stated that he had not been on the selection panel for the Detail office competition or on any other interview Panel. Notwithstanding that fact though it is conceivable on the part of the complainant that DC G would have been in a position to influence the Selection process in her favour.
5.10.3 If it were the case that the Selection Process followed, for the Detail Office post, was a transparent one based on set criteria and a marking scheme and one in which scores were allocated and notes and records kept of all stages in the process, it would be inconceivable that Deputy Governor C could have any influence over the outcome of such a process, however, in the present case it is conceivable that the Deputy Governor could have some influence over the outcome of a competition which was decided upon by a Selection Panel and whose decision was not based on any records or documentation other than half sheet applications. Thus fact the Deputy Governor C was not on the panel for the Detail officer competition would not necessarily preclude him from having some influence over the outcome of the Selection process as far as the complainant is concerned.
5.10.4 The fact the Deputy Governor C was not on the panel for the acting ACO competition did not prevent him from having an influence over the final outcome of the acting ACO roster as it was Deputy Governor C who encouraged two successful female candidates to step down from those positions thus altering the final composition of that Panel. Thus it is not inconceivable that the complainant when asked to step down by Deputy Governor C on the basis that she would be more suited to the upcoming post in the Detail Office, would have accepted that as a commitment from Deputy Governor C that she would be successful in that competition. I am thus satisfied from the totality of the evidence adduced in relation to this matter that the complainant has established a link between the ACO panel and the Detail Office competition.
5.11.1 Competition for Acting ACO post
5.11.1 The complainant advised the hearing that she had applied for an allowance carrying post of Acting Assistant Chief Officer (ACO). The complainant advised the hearing that she was successful in her application for this post and was placed on top of the panel for the position which was published on 5th of August, 2010. The complainant went on to state that she had been called to a meeting with Deputy Governor C who informed her that her that he had “too many female ACO’s “ and that this presented him with a problem which if she were to take up the post would make his life very difficult. The complainant stated that he then advised her that there was a post coming up in the Detail Office which would be more suitable for her based on her experience. The complainant went on to state that although she was placed at the top of the panel for acting ACO, on the basis of her seniority, she was not placed on the permanent roster for the position thus didn’t receive the allowance for the post as this was linked to the roster. The complainant added that following her conversation with Deputy Governor C she felt pressurised to withdraw from the panel and was given the impression by him that she would instead obtain the upcoming Detail Office post. I am satisfied from the evidence adduced by all parties on this matter that Deputy Governor C did ask the complainant to step down from the post of Acting ACO due to the fact that there were ‘too many female ACO’s’ . I find that this comment would not and could not have been made to a male employee and could only have been made to a female employee thus amounting to discrimination on the ground of gender. It is now up to the respondent to refute that claim of discrimination.
5.11.2 Witness for the respondent, Deputy Governor C advised the hearing that he had called the complainant and Ms. S to a meeting with him following their success in the competition for the allowance carrying ACO post as he was concerned about the number of female ACO’s who would now be on the roster if they were to take up these positions. Deputy Governor C stated that this could lead to a situation where there would all females on duty and if an incident occurred in the prison this could present problems for an all female staff complement. Deputy Governor C stated that other female staff members had raised this as an issue with him out of concern for their personal safety. When pressed for particulars regarding the details of those who had raised concerns and the details of those concerns Deputy Governor C was unable to substantiate this statement or to provide any particulars of those who had allegedly raised these concerns. The complainant advised the hearing that her taking up of the Acting ACO post would not have resulted in an all female staff complement as there were two rosters running side by side and the vacancy which she was to fill would result in her working opposite male staff. The complainant also stated she was certainly not aware of any of her female colleagues having concerns or fears that they might end up on a shift with an all female staff complement and added that in any case her taking up of the post would not have this result due to the operation of the two rosters and the ratio of male to female staff on those rosters. Deputy Governor C did not refute the evidence of the complainant on this point. Ms. S advised the hearing that she was not aware that any of her colleagues had concerns for their safety due to fears they may be working with all female staff. In addition the complainant stated that in any event the post of Acting ACO was one which gave the incumbent responsibility for delegating the necessary resources to deal with an incident of disruption or violence among prisoners should one arise and the Acting ACO would not themselves be involved in physically dealing with such incident. Again Deputy Governor C did not dispute this evidence of the complainant or Ms. S on this point.
5.11.3 The respondent in seeking to rebut the inference of discrimination raised in relation to his requesting Ms. D to step down from the acting ACO panel due to his having too many female ACO’s has cited safety considerations in relation to a possible situation where all female staff could be on duty at one time and that this could present a problem if there were to be an incident among prisoners. The respondent has provided no evidence to substantiate the claim that such a scenario could arise or that it would present problems to an all female staff complement. This is based on an assumption by Deputy Governor C that an all female staff complement could not deal with such a situation, this is again unsubstantiated by any evidence.
5.11.4 It has previously been noted that in discrimination cases the Court should be alert to the fact that the motive or reason for an impugned decision may be conscious or sub-conscious. In Nagarajan v London Regional Transport (2001) ukhl 48, Lord Nocholls of Birkenhead said the following: -
I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.
5.11.5 While that case refers to racial discrimination it has been held by the Labour Court that it is equally applicable in cases involving other forms of discrimination.
A similar approach was taken by the Labour Court in Nevins Murphy Flood V Portroe Stevedores Limited  16 ELRDet. No. EDA051
“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.
5.11.6 In the above case the court also made reference to the quality of evidence to be expected from a respondent who bears the burden of proof. In adopting the reasoning of the Employment Appeals Tribunal the EAT in Britain in Barton v Investec Henderson Crosthwaite  IRLR 322, the Court held that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden.
5.11.7 The respondent has also submitted that other female members of staff had raised concerns for their safety in the event of an all female staff complement but again this statement was unsubstantiated by any corroborating evidence.
5.11.8 Both Ms. D and Ms. S were very convincing and consistent in their recollection of the meeting with Deputy Governor C who admitted to making the comment about ‘too many female ACO’s’ but who denies offering the complainant anything in return for her giving up an allowance carrying post. I am satisfied based on the accounts given by all parties on this issue that the Detail Office post was mentioned by Deputy Governor C as an enticement to Ms. D to give up the Acting ACO post.
5.12 Competition for post in the Operational Screening Group (OSG) Unit
5.12.1 When questioned in relation to the OSG unit competition, witness for the respondent, Governor K stated that the panel of successful applicants for this post was released on 2nd of April, 2009. This list was signed by Assistant Governor ML who was not present at the hearing. The complainant was third on this list with one other female prison officers ahead of her on the list. Mr. K, Governor of the OSG unit stated that the candidates on the list had been ranked in accordance with their seniority. The complainant advised the hearing that although the complainant and another female were second and third on the list the post was offered to Mr. W who was fourth on the list. The respondent conceded that this was the case and stated that the first candidate, who was male, had refused the post and added that the post was then offered to number four on the list by passing Ms. H and the complainant who were ranked second and third respectively. The respondent advised the hearing that this Panel was signed by Governor ML and offered by Governor S neither of whom were present at the hearing. Mr. K who advised the hearing that he took over as Governor of the OSG in 2010 stated that the complainant was unsuccessful in the OSG competition due to the fact that the post vacated was a male post and thus there was a necessity to replace the male vacancy on the roster with another male. When asked why this was necessary the respondent stated that there was a requirement to have one female on either side of the roster due to a National Agreement with the POA. Mr. K stated that a vacancy on the male side of the roster thus had to be replaced with a male. When questioned at the hearing as to whether this one female on each side of the roster was a maximum or minimum requirement Governor K replied that it was a minimum. He added though that replacing a male vacancy on this panel with a female officer would upset the male female balance. When questioned as to whether there was any occupational reason for this male female balance the respondent replied ‘No’. The complainant also advised the hearing that there was no indication in the job specification that this post was restricted to male candidates.
5.12.2 I am thus satisfied that replacing a male vacancy on the panel with a female officer would not have upset this minimum requirement to have one female officer on the roster and thus find that it cannot be used as justification as to why the complainant and other senior female officers were passed over in favour of male candidates. In addition the complainant advised the hearing that this position involves searching visitors to the prison, the Complainant added that given the fact that it’s a male prison there are a higher number of female visitors thus a greater requirement to have female prison officers on duty to perform searches as ‘pat-down’ searches on female visitors can only be carried out by female prison officers. The complainant added that she had often been called off other duties to attend to searches of female visitors. I am satisfied based on the totality of the evidence adduced in relation to this matter that the complainant has established a prima facie case of discrimination in relation to this matter which the respondent has failed to rebut.
5.13 Gym Instructor Post
5.13.1 As regards the Gym instructor course the respondent stated that this was not an allowance carrying post at the time of the complainant’s application and stated that the complainant had not actually applied for the post but had applied for a training course which would be useful in future applications for the Gym Instructor Post. The decision at the time had been made by Governor L who had advised the complainant that it would come up again. The respondent advised the hearing that Governor L was not available to give evidence and stated that any records in relation to this matter were no longer in existence. Deputy Governor C stated that he had no involvement in this decision and had not been aware at the time that the complainant had applied for the course.
5.13.2 The complainant, at the hearing advised that this was an application for a Gym Instructor training course which she was not selected to attend and stated that she was prevented from applying for the Gym Instructor post due to the fact that she was not allowed to participate on the course. The complainant stated that when she questioned why she was not selected to attend she was told the course would come up again but it never did. The respondent at the hearing outlined how it had been envisioned that there would be a gym on every floor of the Midlands prison with an associated requirement for trained staff. The respondent stated that this had not transpired to be the case and so only a limited number of Gym Instructor posts had become available and the course had not been run subsequently. It emerged at the hearing that all of the individuals who participated on the course did not necessarily progress to Gym Instructor posts. The complainant submitted to the hearing the advertisement for the Gym Instructor course which invited applications ‘stating any relevant experience’. The complainant advised the hearing that three of the successful candidates were junior to her and male but stated that she didn’t know whether they had any relevant experience or not. The respondent did not put forward any argument in respect of whether the chosen candidates had any relevant experience or not.
5.13.3 The complainant stated that the list of successful candidates was never published and that she was never given a reason as to why she was refused the course. The complainant added that she had later heard that five males had been sent on the course three of whom were junior to the complainant. The respondent at the hearing stated that this course had taken place back in 2001 and that records were no longer available in relation to this matter however the respondent could not dispute the fact that the course was granted to three junior male officers in place of the complainant and could offer nor reason as to why the complainants application for the course was not accepted. I am satisfied based on the totality of the evidence adduced in relation to this matter that the complainant has established a prima facie case of discrimination in relation to this matter which the respondent has failed to rebut.
5.14 Link between incidents
5.14.1 I am satisfied from the totality of the evidence adduced above that the complainant has established a link between the ACO competition and the Detail Office competition. It is now necessary for me to examine whether or not the complainant has established a link between the other incidents complained of and whether they can be considered as separate manifestations of the same disposition to discriminate. The complainant submits that she was discriminated against on grounds of gender in relation to a number of posts all of which took place during her employment in the Midlands Prison. She advised the hearing that in relation to each incident she was passed over in favour of a less suitable male candidate. The complainant has submitted that all of the incidents above are linked and are manifestations of the same disposition to discriminate. These incidents all took place during the complainant’s tenure in the Midlands prison and all of them relate to the complainant being unsuccessful and being succeeded by less experienced or less senior male candidates. It is also apparent that although some of the decisions are attributable to different individuals the same senior personnel are in place throughout. In addition it has been a common thread of the selection processes complained of that there are no records available or marking schemes against which criteria can be measured and no means by which to assess on what grounds decisions have been made. This lack of transparency leads me to make inferences about the fairness of the selection procedures followed which the respondent has failed to rebut. I am thus satisfied that the complainant has established a link between the incidents complained of and I am thus satisfied that these can be considered as separate manifestations of the same disposition to discriminate.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2008 I issue the following decision. I find that
(i) the respondent discriminated against the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts in relation to the following
- In 2001 competition for a gym instructor course.
- In April 2009 application for a post in the Operational Support Group.
- In August 2010 when she was asked to step down from the post of Acting ACO
- In September 2010 competition for an allowance carrying post in the Detail Office.
6.2 Section 82(1) of the Employment Equality Acts, 1998-2011 sets out the redress which an Equality Officer can order when a complaint of discrimination is upheld. The section provides that I can order re-instatement or re-engagement, with or without compensation where a finding of discrimination has been made. It has been the practice of this Tribunal in cases where discrimination has been held to occur, to place the complainant in the position s/he would have been in had the discriminatory treatment not taken place. Therefore, in accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I order that
(i) the complainant be appointed to the position of Acting ACO, and placed on the permanent roster for that position, and that such appointment be backdated to take effect from the 5th of August 2010, with all consequential employment rights and entitlements, whether arising from contract or statute, including remuneration and recognition of service.
6.3 In considering the redress in this case, I am mindful of the fact that I have found that the complainant has been subjected to discrimination on grounds of her gender on a number of occasions during her career with the respondent. In addition, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In making my award, I am mindful of the remuneration which the complainant was in receipt of at the relevant time, and the length of time she was employed by the respondent I consider an award of compensation in the sum of €40,000 to be just and equitable.
6.4 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination. This component of the award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
6.5 In addition I found above that the respondent’s selection process for the allowance carrying post in the Detail office was clearly deficient and did not comply with Equality legislation. Under Section 82(e) of the Acts, I order that the respondent to ensure that a transparent fair selection process is adopted in all future selections and to ensure that the selection panel is trained in the process and sets down in writing the criteria before embarking on the selection process, to adopt a marking scheme and the weighting given under each element and to ensure that notes are retained.
19th of November, 2013