FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : DEPARTMENT OF JUSTICE EQUALITY AND LAW REFORM (REPRESENTED BY MR ANTHONY KERR B.L. INSTRUCTED BY THE CHIEF STATE SOLICITORS OFFICE) - AND - A WORKER (REPRESENTED MS MARY HONAN B.L. INSTRUCTED BY THE EQUALITY AUTHORITY) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. An appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Complainant appealed the Decision of the Equality Officer to the Labour Court on the 25thJanuary 2013. Three Labour Court hearings took place on the 2nd July 2013, 3rd February 2014 and on the 10th February 2014. The following is the Court's Determination:
DETERMINATION:
This is an appeal under Section 83 of the Employment Equality Acts against a decision of the Equality Officer bearing the number DEC-E2012-186 delivered on 19 December 2012. A worker ("the complainant") complained that the Department of Justice Equality and Law Reform (“the Respondent”) subjected her to discriminatory treatment on the ground of gender, marital status, age and/or race in terms of Sections 6 (2) (a), (b), (c) and (h) of the Acts and contrary to Sections 8 of the Employment Equality Acts. The Equality Officer investigated the Complaints and decided as follows:-
“The respondent did not discriminate against the complainant on the age, marital status or race grounds pursuant to section 6(2) of the Acts in terms of her conditions of employment contrary to section 8(1) of the Acts.
The Complainant appealed against that decision to this Court. The appeal was filed with the Court on 25 January 2013. The case came on for hearing on 2 July 2013. The hearing was adjourned and was reconvened in early 2014.
Complainant’s Case
The complainant alleges that the respondent discriminated against her on the grounds of gender, marital status, age and race in relation to access to employment and promotion/re-grading. The complainant alleges that the discriminatory act first occurred on 15 June 2005 and most recently on 18 July 2008.
The Complainant joined the Civil Service in 2002 as a Clerical Officer. After fifteen months she was appointed an Executive Officer following success in a competition for appointment to that grade. She was then eligible to compete in competitions for appointment as an “Overseas Visa Officer”.
She applied for appointment to that post on four occasions over the following five years and was unsuccessful on each occasion.
She states that, while her education, experience and skills met or exceeded the required standard, she was not successful in securing a place on the panel. She states that she was not given an adequate explanation as to why she was unsuccessful in those competitions. She further states that she was not persuaded that the successful candidates were more qualified than her.
In respect of the most recent competition in which she participated the complainant contends that the same questions were not put to all candidates. She maintains that the evidence supports her contention that she was discriminated against because of her gender, age, marital status and nationality or perhaps a combination of some or all of these reasons.
She states that she was born Irish but spent half her life in Canada and has retained a Canadian accent which she contends some Irish people find irritating.
Counsel on behalf of the complainant submits that the discrimination at issue is a form of continuing discrimination. Section 77(5) of the Act provides that the time limit runs from the date of occurrence of discrimination or 'its most recent occurrence'. She submits that the continuing discrimination in this case arises from a continuing 'state of affairs', a prejudice against the complainant on the grounds cited, and the continuing failure of management to address the issue.
She further submits that the alleged discrimination in this case continued from 2005 up to and including the competition in July 2008.
She submits that the Court should take account of the following in reaching its conclusions
- the perceived 'difference' of the complainant with regard to race and age
- the experience and qualifications consistent with, relevant to, and exceeding the job specifications at issue that the Complainant possesses
- the dramatic divergence between the marking of the complainant in the competitions at issue and her extremely high marks and positive assessments in the HEO competition 2007 which she maintains is a far more challenging, wide ranging and thorough examination of the Complainant than the process employed in the competitions at issue
- the complainant's contemporaneous notes of the interview for the competition in July 2008 which she says discloses that many of the questions asked of her were irrelevant and of obscure motivation
- the relevant experience of the complainant both in the Department of Justice and also in Canada and Eastern Europe which was not addressed with the complainant at interview with the result that it placed her in a disadvantaged position.
She states that all candidates that competed in the most recent competition were assessed by their supervisors with regard to their suitability for appointment to the impugned post. She notes that her supervisor’s assessment rated her as "exceptionally well qualified" for appointment to the post.
She submits that her experience, qualifications and managerial support made her eminently suitable for appointment to the post.
She contends that the interview board in July 2008 had not received adequate training. She maintains that it failed to meet acceptable standards in the manner in which it conducted the interview process. She notes that a subsequent examination of the interview process in this case by the CPSA found that the notes of the board members fell considerably short of proper interview notes. She notes that while board members denied to the CPSA review that the complainant had been told that she was 'too well qualified' for the job, the handwritten notes of at least two of the interview members include the notation "too qualified".
She submits that the complainant is covered by the race ground because of a nationality and/or national origin and/or ethnic origin which was imputed to her. The complainant has spent almost half her life in Canada, obtained her academic qualifications there and speaks with a Canadian accent. She asserts that assumption of Canadian nationality and/or national origin and/or ethnic origin in respect of the complainant is a reasonable one in the circumstances. She asserts that the fact that the complainant is of Irish nationality and of Irish national and ethnic origin does not negate the perceived difference in question.
She submits that the less favourable treatment of the complainant in respect of the competitions at issue and the difference of 'race' raise a presumption of discrimination under the 1998 Act which must be rebutted by the respondent pursuant to Section 85 A and the authorities cited.
On grounds of age, the complainant contends that Ms A, the chair of an interview board in October 2006 (and the interview board in July 2008) stated to the complainant during a feedback meeting in February 2007 that 'young people nowadays' are so much better at expressing themselves and describing their skills and talents and that the complainant looked 'dull' by comparison. Counsel alleges that this indicates a prejudice against the complainant on grounds of her age. The complainant stated that in the competition in February 2008 the two successful candidates were younger than her. In the July 2008 competition she states that most of the successful candidates were under 35. In relation to the competition in July 2005 the complainant contends that all successful candidates were young people.
In relation to her claim of discrimination on the grounds of gender, Counsel for the complainant submits that in the February 2008 competition three candidates were deemed suitable, the complainant and two male colleagues, the two male colleagues were successful. The complainant submits that it is not credible that two younger male candidates were more suitable than her, given her experience and assessments.
In relation to her claim on grounds of marital status, Counsel submits that in respect of the July 2008 competition of the fifteen successful candidates 80% were single. The complainant states that she had recorded her family status as 'divorced' on her application.
In summary the complainant contends that the pattern of rejection for the competitions at issue was influenced by discriminatory prejudice against her on the grounds of race, age, gender and marital status. It is further submitted that the pattern of failure to secure appointment on the part of the complainant is inexplicable otherwise than by reference to discriminatory prejudice, given her experience and suitability.
Respondent’s Case
The respondent argued that the competitions that took place prior to 2008 were statute barred. It concentrated on the 2008 competition.
The respondent states that the competition processes concerned did not involve promotion or re-grading but appointment to posts abroad in the same grade, albeit posts that attracted certain expense allowances - living allowances and hardship allowance. In February 2008 the selection for appointment to what were short-term assignments, was made by senior management having regard to suitability and experience of the candidate for appointment to the post. In all cases the respondent is satisfied that the complainant was not discriminated against on the ground of gender age marital status or race.
Time Limit
The respondent submits that only the complaint in respect of the internal competition under Office Notice 22/2008 has been lodged within the time limit prescribed by section 77(5) of the Employment Equality Act, 1998 which requires that a claim may not be referred after the end of the period of 6 months from the date of the occurrence or its most recent occurrence of the alleged act of discrimination. In the case of the complainant this occurred, allegedly on the 18 July 2008. The respondent submits that as regards the competitions under Office Notices 26/2005, 31/2006 and 4/2008 results of which were communicated to the complainant on 25 August 2005, 9 November 2006 and 10 March 2008 respectively the complaints are out of time and should be dismissed for that reason.
General Response
The Respondent states that the complainant applied for a visa officer post in response to office notice 22/2008 (internal competition for assignment to posts at EO/Visa Officer at Embassies abroad). This was a standard notice that contained the same reference to openness to other cultures and knowledge of visa matters as were contained in previous notices.
No specific academic qualifications were required. A selection board was appointed to interview and identify the most suitable candidates for appointment to the advertised posts. The Board was made up of Ms A, an Assistant Principal in the Irish Naturalisation and Immigration Service (INIS), who acted as Chairperson, Mr B, a Higher Executive Officer attached to the Department of Justice, Equality and Law Reform and Ms C, a Higher Executive Officer attached to the Department of Foreign Affairs.
There were 29 applications for appointment to the available posts.. Six candidates did not fulfil the essential requirements. One candidate withdrew leaving 22 candidates for interview (12 male and 10 female).
The respondent submitted in evidence a table setting out information on each candidate's nationality, family/marital status, age and gender. The respondent states that some of the information carries a "health warning". Personal information such as nationality, marital status and family status is based on information volunteered by staff and the records may not necessarily reflect either the current position or the position at time of interview. When a staff member marries, separates or has children there is no obligation on them to notify the Department.
The respondent states that interviews took place between 8 July 2008 and 18 July 2008. A total of 15 candidates (seven male and eight female) were considered by the Board to be suitable for the post. The complainant was not among the successful candidates.
The respondent contends that the interview board was seeking a “team player” for the position. While the complainant demonstrated leadership and independence, these were not the primary skills sought. Although her CV highlighted team participation at several levels this was not evident throughout interview and this failure resulted in her failure to reach the qualifying mark.
Subsequent to this competition on 7 August 2008 the respondent states that the complainant made a complaint under section 8 of the Commission for Public Service Appointments (CPSA) Code of Practice that there had been a breach of the Commission's Code of Practice. The CPSA appointed a former Principal Officer from another Department to review the appointment process. He found no breach of the Code of Practice.
On 30 September 2008 the complainant sought a further review by way of appeal to the CPSA. On 17 February 2009 the CPSA issued its report. The respondent states that of the five specific areas of complaint the CPSA concluded that breaches of the Code of Practice had taken place in two viz -
the notes taken by the board members fell considerably short of what was required and the internal review was judged not to have been conducted in line with the Code, albeit unwittingly.
The respondent states that the complainant was unsuccessful in her applications for the position of visa officer in an overseas Department of Justice office because her assessment at interview did not merit her being placed on the panel.
The respondent disputes the complainant's contention that an alleged divergence between the marking of the complainant in the competitions at issue and the marking of her at stage2 in an interdepartmental competition for promotion to Higher Executive Officer in 2007 supports her contention of discrimination. The respondent submits that feedback letter for that HEO competition states that her performance in that competition should not be used as an indicator of her potential for other jobs.
Findings
Jurisdictional Issues- Time Limits
It is submitted by the respondent that the complainant's claims as regards the competitions under Office Notices 26/2005, 31/2006 and 4/2008 (the results of which were communicated to the complainant on 25 August 2005, 9 November 2006 and 10 March 2008, respectively) are outside the time limit prescribed by s. 77 (5) (a) of the Act and are therefore statute barred. It is submitted on behalf of the complainant that all four competitions constitute a continuum of discrimination from 2005 up to and including the competition in July 2008 and that therefore the time limit under s.77 (5) (a) has been complied with.
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."
Having examined the submissions of both parties on this point the Court finds that the competitions were independent of each other. The Complainant did not establish a sufficient connection between the competitions such that would support her contention that they should be viewed as anything other than a series of independent unconnected competitions.
The Act requires that complaints be brought within six months of the date on which the alleged infringement took place. In the case of competitions that took place before July 2008 the complaints were not brought within the statutory time limit and accordingly are statute barred.
Determination
The Court finds that the complaints in respect of the competitions that took place before July 2008 are statute barred and determines accordingly.
Competition (office notice 22/2008) held in July 2008
The Complainant did not pursue the complaint of discrimination on the grounds of gender before the Equality Tribunal and accordingly did not appeal against that decision to this Court in respect of this competition.
The issue for decision by the Court is whether the respondent discriminated against the complainant on the grounds of age, marital status and race in terms of section 6 of the Employment Equality Acts, 1998 to 2008 when, following the competition held in July 2008, it decided not to place her on the panel for appointment to the post of overseas visa officer.
Burden of Proof
Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof to apply in this case.
Section 85A states
- “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 him or her, it is for the respondent to prove the contrary.”
The complainant established that Office Notice 22/2008 advertising the position contains the following statement
“Officers should give careful consideration to their personal and family circumstances before applying under this competition, and only those with a committed interest should forward their names for consideration.”
Office Notice 22/2008 furtherstates “the selection process will take the form of a competitive interview, the overall focus of which will be to assess each candidate on the basis of their career and experience to date in terms of the desirable competencies to successfully undertake the job. Regard will also be had to a supervisors’ assessment in relation to the candidate’s overall performance and their suitability for an overseas posting in a small operational office.”
The complainant further established that not all of the interviewers’ notes were available for review by the Court. One set of notes was not produced to the Court and the other two sets were less than comprehensive.
The complainant established that the interview board decided that it was seeking a “team player” and made its decision on that basis. In its feedback note to the complainant it argued that, while she demonstrated leadership and independence and her cv disclosed team participation at several levels, she did not demonstrate the ability to fully participate within a team at interview.
She established that neither the job advertisement nor the marking scheme prioritised team skills as a required personal quality for success in the competition. It was but one of five equally weighted categories on which each candidate was marked. Team work was nowhere identified as an essential requirement for success in the competition or for appointment to the post.
The Court notes that there was a measure of inconsistency between the notes taken at interview, the marks awarded under that heading and the feedback letter. One set of notes states the complainant is “not initiating more being lead” while the feedback letter states “the candidate clearly demonstrated leadership and independence” The complainant was awarded 50 out of 100 marks under that heading. The pass mark was 300 out of five hundred. Accordingly it is reasonable to assume that the pass mark on each of the factors was of a similar order. Accordingly the Respondent must explain why complainant was failed under that heading.
By comparison the panel decided that the complainant did not display team skills and was awarded 45 marks out of 100 under that heading.
While there were only five marks in the difference between those awarded under each of those headings and on the face of it she failed both of them, the Court notes that the Complainant was told that the reason she was failed overall related to her lack of team skills alone. The inconsistency requires explanation.
The interview notes disclose the following remark in relation to the candidate. “not communicating with M”. At another point the notes disclose the following comment “communications poor”. The feedback letter makes no reference to this failure. Yet the panel awarded the candidate her highest mark under this heading 72 out of a possible 100. This inconsistency requires explanation.
There is no breakdown of the manner in which the marks allocated were arrived at. Each of the five factors carried a possible 100 marks. There was no scheme in place for awarding marks under each of those headings. Instead the panel awarded marks on what might be called a felt fair system that was neither transparent nor open to review and analysis. Such a system is suspect and may hide conscious or unconscious discrimination on the part of the panel members.
The information provided to the Court discloses that 22 candidates presented for interview. 18 or 81% were under age 40 and 4 or 18% were over age fifty. Of the four candidates that were over 50 two or 50% of them were successful at interview, two were not. In other words 50% of the over 50’s were successful at interview while 50% were not. Eighteen candidates under age 40 presented for interview. 13 or 72% were successful, 5 or 28% were unsuccessful.
While 22 candidates presented for interview of which 18% were over 50 only 13% of the successful candidates were over 50. Of the 7 candidates that failed at interview 31% were over 50.
These figures require some explanation by the respondent.
The complainant alone is described in the documentation presented to the Court as having the civil status of “Divorced” recorded after her name. The respondent states that information regarding the complainant’s civil status was not disclosed on the application form but rather on departmental records that were not opened to the interview panel.
The Complainant alone is described as having Irish/Canadian nationality in the documentation opened to the Court. The Complainant talks with an American/Canadian accent. She asserts that the Panel could not but be aware of her difference from the other candidates in that regard.
The Complainant stated that she was asked a question by one of the members of the interview panel that she felt associated her civil status with drunken unruly behaviour.
Decision
On the basis of the evidence adduced by the complainant the Court concluded that, taken together, she had met the threshold set out in Section 85A of the Act.
Substantive case
The Respondent denied that it had discriminated against the Complainant on any or all of the protected grounds before the Court. It called three witnesses to give evidence to the Court, Mr McD and two members of the Interview Panel, a Mr S and Ms A.
Mr McD told the Court that notice 22/2008 contained a reference topersonal and family circumstancesin order to alert potential candidates to the social, political, health and education conditions that apply in some of the postings under consideration. It was important that people reflected on their capacity and willingness to relocate to such locations taking into account all of their individual circumstances. He stated that it was advisory in nature and a matter for the candidates rather than the interview panel to take into consideration.
Both Mr S and Ms A took the Court through the contemporaneous notes they made in the course of the interview and recounted their version of events and how they impacted their decision in this case.
There were some inconsistencies in their account of the interview. However on a number of points they were in agreement with each other and their evidence was consistent with their notes of the interview.
Both of them told the Court that the Complainant did not perform well at interview, dealt inadequately with the questions asked of her, sought to cut off questions rather than give full answers, had a curt attitude towards the questions asked of her at interview, displayed little understanding of working on a small team in a foreign posting but was well qualified and professional. Both of them noted that the final assessment of the candidate recorded in their respective notes of the interview state in one case “Can’t see applicant working within a team” and “Won’t fit into Embassy at all” and in the other case “very strong personality, very self- reliant and seems to be unaware of the role others play” and “Seemed put out at times and was impatient, aggressive, very anxious to cut off questions.”
Ms A acknowledged that she asked the Complainant a question regarding the standards of behaviour that would be expected of an Irish person working in the embassy. She stated that embassy were always in the public eye and that embassy staff were required to conduct themselves accordingly. She acknowledged that she drew a picture of a person drinking to excess and the consequences that might have for themselves and the embassy. She said she asked a similar though not precisely the same question of all applicants for the position. She said that it did not reflect on the character, civil status, age, ethnic origin or nationality of the complainant as she was treated no differently to any other candidate at interview.
Both witnesses told the Court that they read the supervisor’s reports on each of the candidates. However they noted that almost all of the reports rated the candidates in the category “outstanding” or “Exceeds Required Standard”. Accordingly they did not give further consideration to the reports. They acknowledged that they did not award marks on the basis of those reports and made their decisions on the basis of their observations at interview.
The Complainant gave evidence to the Court. She recounted her recollection of the interview and took the Court through the notes she made shortly afterwards. She noted that she had been unsuccessful at interview in the past and had undertaken some training to improve her chances of success. She was of the view that she had performed very well at interview. She noted that some of the questions were inappropriate or irrelevant. Nevertheless she said that she addressed all of the issues raised and demonstrated her suitability and capacity to undertake the duties and to live and work in a foreign country.
Findings of the Court
Having considered the totality of the evidence presented the Court finds that the job advertisement was badly phrased but was not designed nor did it have the effect of discriminating against the Complainant on any of the protected grounds. The Court found the explanation given for the inclusion of the need for a person to consider their personal and family circumstances before taking appointment to a developing country was a reasonable one in all the circumstances of the case. A person going to a foreign third world country was being advised to familiarise themselves with the circumstances in which they would work and live and the circumstances in which those that travelled with them would find themselves. The Court accepts that it was cautionary and not discriminatory in its intention and effect.
The Court finds that the interviews were not conducted in accordance with the procedure set out in Notice 22/2008. However that makes them irregular rather than discriminatory. The Court found the respondents witnesses credible and honest. It found their explanation of their notes reasonable and consistent. The Court finds that they overplayed the importance of teamwork relative to its ranking in the notice. However the Court finds that decision was not discriminatory on any of the grounds contended for in this case.
The Court finds that the questions asked of the candidate were reasonable and sought to establish her suitability for appointment to the panel for assignment overseas. The question regarding the requirement that embassy workers limit their behaviour while abroad was badly phrased, was asked in one form or another of all of the candidates and disclosed no conscious or unconscious bias towards the candidate on any of the protected grounds.
On examining the statistical evidence presented to it the Court finds that the number of candidates over 40 is too small to permit meaningful statistical analysis on them. While at first blush the figures suggest a bias on the age ground, the Court finds that had one more candidate aged 50 or over been appointed to the panel the statistical outcome of the process would have been completely reversed. 75% of the candidates aged over 50 would have been successful in the competition and 25% unsuccessful. The effect of a change in outcome for one person would in the Courts view have a disproportionate effect of the statistical analysis as to render it of no value in assessing the matter before it. The Court finds accordingly.
The Court notes that the Complainant was successful at interview for promotion to the grade of Higher Executive Officer level within the Civil Service. The Court notes that success in that competition did not imply suitability for appointment to the impugned panel in this case or to any other post. It merely qualified her for the post for which she competed. Accordingly the Court finds that the Complainant's success in that competition does not assist it in the current case.
Taking all of the evidence into account the Court finds that the Complainant’s nationality, marital status, family status or age were not factors that consciously or unconsciously influenced the interview panel in its conduct of the process and or in arriving at its decisions in this case.
Overall the Court finds that the Complainant gave honest evidence to the Court and though very well qualified, professional and competent was unsuccessful at interview because of the manner in which she addressed the questions put to her by the members of the panel. The Court accepts the explanations given by the members of the interview panel that they made their decisions based on the complainant's poor performance at interview and not on any other ground.
Based on the evidence therefore the Court finds that the interview panel did not consciously or unconsciously discriminate against the Complainant on any of the stated grounds in this case.
Accordingly the appeal fails.
Determination
The complaints are not well founded. The appeal is not allowed.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
14th May, 2014Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.