FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : WILLIS RISK SERVICES (IRELAND) LTD (REPRESENTED BY WILLIAM FRY SOLICITORS) - AND - LINDA BRENNAN (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal under Section 83 of The Employment Equality Acts, 1998 to 2011
BACKGROUND:
2. The Worker appealed the decision of the Equality Officer to the Labour Court on the 17th January, 2014. A Labour Court hearing took place on the 30th April, 2014. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Ms Linda Brennan (hereafter the Complainant) against the decision of the Equality Tribunal in her claim of discrimination on grounds of civil status (formally marital status) and family status against Wills Risk Services (Ireland) Limited (hereafter the Respondent). The claim was made under the Employment Equality Acts 1998 -2011.
Background
The Respondent is an insurance broker and pensions, actuarial and risk management consultancy. The Complainant held the position of Compliance Manager with the Respondent. She worked part-time (22.5 hours per week). Her claim relates to the filling of a post as Head of Compliance with the Respondent, which became vacant in or about March 2011. That was a full-time position but the Complainant was prepared to work full-time if she was appointed to the position.
The Complainant applied for the post but was unsuccessful. The successful candidate was a woman who was not married and who did not have children. The appointment was made from outside the organisation.
Position of the Parties
The Complainant
In advancing her claim the Complainant relies on what she regards as irregularities in the manner in which the competition was conducted. Specifically, she contends that a number of candidates received exactly the same marking under the same headings. In effect she contends that this could not be explained by mere coincidence. She contends that it discloses a predisposition on the part of the selection panel to appoint the successful candidate. She invites the Court to infer that this was because she is married with children whereas the successful candidate was single and without children.
The Respondent
According to the Respondent there were originally four candidates for the position, including the Complainant. The Complainant was the only internal candidate. One of the external candidates withdrew before the interviews.
The post was filled by way of a competition following an internal and a public advertisement. The candidates were interviewed by a panel comprising three persons. The competition came down to a choice between the Complainant and the successful candidate. The successful candidate had over three years’ experience in a similar role in a major competitor of the Respondent. In that capacity the successful candidate had acted as the primary relationship manager with the Central Bank and the Financial Services Ombudsman. Unlike the Complainant the successful candidate had a primary degree in business and she was qualified as a chartered insurance practitioner. The Respondent contends that it was unaware of the successful candidate’s civil status or her family status.
Evidence was given by two members of the selection panel. Both witnesses testified that each of the candidates was asked the same range of predetermined questions. They both told the Court that after each interview the panel discussed the relative merits of the candidates and arrived at a consensus mark under the various headings. In the course of these discussions the mark awarded to the successful candidate under one of the headings was modified downwards. This, according to the witnesses had the effect of advantaging rather than disadvantaging the Complainant.
There were further discussions between the panel members before a final decision was made. Both witnesses who gave evidence told the Court that they were unaware of either the civil or family status of the successful candidate.
Conclusion
The law relating to the allocation of the burden of proof in discrimination cases involving the filling of posts is well settled in a line of authorities starting with the decision of this Court in Determination EDA042, Kathleen Moore Walsh v Waterford Institute of Technology. The approach in that case was most recently followed inDr Eleanor O’Higgins v University College Dublin[2013] 24 ELR 146. That latter decision comprehensively sets out what the approach of the Court should be in dealing with cases such as the instant case. The decision of this Court was upheld by the High Court inO’Higgins v The Labour Court & anor[2013] IEHC 508. Here Cook J held that in cases involving the filling of posts, whether initially or on promotion, it is not the function of this Court to decide on the relative merits of candidates. Rather, its role is to ensure that the decision making process of the Respondent was not tainted with discrimination.
In this case the Claimant relies entirely on the marking system applied by the Respondent in advancing her claim of discrimination. That marking system was fully explained by the witnesses who gave evidence on the Respondent’s behalf. Having regard to the explanation proffered, which the Court fully accepts, it could not amount to a fact upon which discrimination could be inferred. Moreover, the Court fully accepts the evidence given by the witnesses who had participated in the selection process that they were unaware of the civil and family status of the successful candidate. Accordingly, that could not have been an operative consideration in the decision to appoint the successful candidate.
Determination
For the reasons set out herein the Court affirms the decision of the Equality Tribunal and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
CO'R______________________
9th May, 2014Chairman
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.