ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015314
Kathleen Moore Walsh
Waterford Institute Of Technology
Adrian Twomey, Jacob and Twomey Solicitors
Tom Mallon BL instructed by Sarah Grace, AIG
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 19/04/2021,16/12/2021 and17/12/2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General  IESC 24 on 6 April 2021 and the parties agreed to proceed in the knowledge that decisions issuing from the WRC would disclose their identities.
The Complainant as well as one witness on behalf of the Respondent gave relevant sworn evidence at the hearing.
The Complainant has been employed as a lecturer with the Respondent since 31 October 1997 and earns a monthly salary of €7,054. She alleged firstly that she was discriminated against by the Respondent when a decision was made in 2018 to promote a male colleague. The Complainant also claimed that she was victimised when the Respondent failed to re-run an impugned 2013 selection process and appointed the male candidate from that process because she had made complaints to the WRC.
Summary of Complainant’s Case:
The Complainant is a U.S. citizen who commenced employment with the Respondent on 31 October 1997. She is currently employed as a Law Lecturer in the Respondent’s School of Humanities. She works 38 hours per week and receives a monthly gross salary of €7,054.08.
In December 2001, whilst the Complainant was still an Assistant Lecturer, the Respondent advertised a position as “Lecturer”. The Complainant was subsequently interviewed for that post in January 2002 but was not appointed. The Chairperson of the interview panel was Ms X.
The Complainant’s trade union filed a claim under the Employment Equality Acts alleging that the Complainant was subjected to discrimination because of her nationality. The claim was filed with the Equality Tribunal in 2002 and was decided by an Equality Officer in 2003. The Complainant’s claim was unsuccessful as was her subsequent appeal to the Labour Court. Ms X gave evidence against the Complainant at the Labour Court hearing and, it appears, has been biased against the Complainant ever since.
The consequences of filing the promotion-related complaint in 2002 began to manifest themselves quite quickly. Later that year (and before the Equality Tribunal hearing on 19 February 2003) the Complainant was informed by the Head of the Department of Applied Arts that she could not supervise a masters’ degree student because he did not regard her own Juris Doctor (JD) degree as constituting a postgraduate qualification. In December 2002 she received the Respondent’s submission to the Equality Tribunal (regarding the 2002 case) and found that same also argued that her qualifications did not equate to a PhD.
In 2003, the Higher Education and Training Awards Council (HETAC) confirmed in correspondence however that the Complainant’s JD degree was equivalent to the qualifications required under the HETAC regulations for supervision of masters-level research.
On 14 November 2002 the Complainant submitted a further complaint to the Equality Tribunal. That case was determined on 23 June 2004. In her decision the Equality Officer concluded that WIT had subjected the Complainant to victimisation within the meaning of section 74(2) of the Employment Equality Act 1998 in relation to the supervision of the masters’ research student. The Equality Officer ordered that the Respondent:
· Pay the Complainant €15,000 in compensation; and
· Issue an apology.
The Equality Officer specifically stated that the award of compensation was “to act as a deterrent under EU law”.
The Respondent appealed the Equality Officer’s decision to the Labour Court. The Court determined that:
“- the respondent was victimised by the appellant when it questioned the validity of her JD and intimated that it could not permit someone holding this qualification to supervise a masters' student.
- this action was related to or influenced by the respondent’s taking another case under the Act against the appellant, in which some factors relating to the respondents JD before had a bearing.
- the stress and hypertension of which the respondent complained may to some minor extent, have been contributed to by the events complained of, but the stress was in the main caused by another, unrelated event and the hypertension was pre-existing for many years. However, the increase in the level of stress suffered by the respondent constitutes penalisation under the Act. Given the above conclusion, the Court determines that, while the basic conclusion of the Equality Officer was correct, and while any level of stress caused by victimisation is to be deprecated [sic] and should properly be apologised for, the stress suffered by the respondent was in the main caused by unrelated matters and the level of compensation awarded by the Equality Officer was excessive. The Court upholds the Equality Officer’s decision regarding victimisation and an apology but varies the amount awarded by way of compensation to €5,000.”
In 2004, the Complainant applied for the post of North American Links Co-ordinator in the Respondent’s International Office. That application was the subject of a third equality case between the parties. The case in question was settled on 24 April 2006 when the Respondent agreed to conduct an equality audit.
Although the audit was completed in 2007, the Respondent has still not implemented the recommendations arising from the equality audit and the ensuing report. In particular, it has failed to implement the recommendations regarding interviews.
As outlined above, the Equality Officer in the first victimisation case issued her decision on 23 June 2004 and found that the Complainant had been subjected to victimisation. Within a matter of days of that decision being published the Complainant was removed by her then Head of School from teaching on law courses, he told her that he was doing it for her own good. She was instead sent to teach entry-level servicing modules (law modules on non-law courses) at another campus.
The Complainant was, once again, found herself in a position where she had no option other than to turn to the Equality Tribunal. Her ensuing claim was decided by that Tribunal on 19 December 2006. The decision of the Equality Officer states that the Complainant:
· was harassed on the race ground (although the said harassment was not deemed to constitute discrimination); and
· was subjected to further victimisation.
On this occasion the Equality Tribunal awarded €15,000 in compensation to the Complainant. It also ordered that an internal complaint of bullying be investigated. On this occasion the Respondent did not appeal the Tribunal’s decision.
On 28 January 2013, interviews were held for a promotional post (Assistant Head, Department of Humanities). The Complainant had applied for the position and was interviewed. Prior to the interview, the Complainant enquired as to the composition of the interview panel. The Respondent’s HR Department advised the Complainant that the Respondent’s policy prevented the release of the interviewers’ names in advance. On the morning of the Complainant’s interview, she met Ms X – the previously-mentioned member of the Governing Body - in the vicinity of the interview location and discovered that she was to chair the interview panel. It later emerged that the interview marking scheme was also only agreed by the interview panel after the members were made aware of whom they would be interviewing.
The Complainant voiced her concerns to the then HR Manager, because of her previous history with Ms X. He advised the Complainant to press ahead with the interview which she did. She was, however, deeply disconcerted by Ms X’s involvement and felt that she underperformed at interview as a result.
The Complainant was later informed that she had not been successful and learned that a male colleague was to be promoted to the post in question. On 1 February 2013, she raised the matter with the President of WIT. The President’s office agreed to an independent external investigation of the appointment process and the promotion was put on hold in the interim. Terms of reference were agreed with the external investigator and the review commenced on 19 March 2013. The report was issued on 28 May 2013.
The Investigator found that the process used by the Respondent went against the rules of natural justice and best practice. She also noted that Ms X’s actions could be considered as victimisation. Her report stated that:
“1. Ms X had mentioned the complainant’s previous claims against WIT to the interview board before the interview started. This had the potential to ground a claim for victimisation before an Equality Officer.
2. Natural Justice or best practice were not followed in the interview context.
3. Ms X ought not to have been assigned to an interview board where the complainant was a candidate, given the prior existence of a perception of bias. There were grounds for Ms X to recuse herself from the interview.
4. The complainant had been adversely impacted by her experience at interview.
5. In the event that the WIT “decides to run the competition anew, and the complainant applies or is otherwise a candidate, it should not have Ms X on the board. “The report went on to state that the remaining 4 Interviewers should also be excused, “to avoid any suggestion of bias, actual or perceived, on their part”.
The Complainant had difficulty getting a copy of the report from the Respondent and did not receive same until 1 July 2013. At that point, the Respondent asked that the Complainant agree to a retrospective revision of the terms of reference, but she did not agree.
In an email dated 5 July 2013, the then HR Manager confirmed that no appointment would be made arising from the January 2013 interview process and informed the Complainant that the Respondent planned to hold a new competition for the post in September 2013. Unfortunately, the Complainant became unwell and was on sick leave from September 2013 until November 2013. The HR Manager confirmed to her in an email on 9 September 2013 that the new competition would run on her return.
The Respondent applied to the Department of Education and Skills in June 2014 to request a derogation from the selection procedures so that they could establish a fair selection board for the competition. This was requested on foot of the Complainant’s complaint, the independent report from the external investigator and following the Respondent obtaining legal advice which supported the idea of running the interviews with a new interview board. This request was granted by the Department by way of letter on 20 June 2014. No new promotion competition was ever run.
The Complainant submitted two complaints to the Equality Tribunal in July 2013 regarding the matter. That case was not heard until 16 November 2015 and the Equality Officer issued her decision on 29 November 2016. Both parties appealed to the Labour Court where it was founded that the Court did not have jurisdiction to hear the discrimination complaint and set aside the Adjudications Officer’s decision that the Complainant was victimised.
Following the Labour Court hearing regarding the 2013 promotion case, the Complainant continued to enquire when the new competition for the disputed post would be run in line with the Respondent’s earlier undertakings. She emailed the Respondent’s current HR Manager, on 22 March 2018 but received no response. Her trade union representative submitted a grievance on her behalf on 23 April 2018 because new interviews had not been held as per the Respondent’s undertakings to her in July and September 2013. The Complainant met with the current HR Manager, and the Financial Controller, on 17 May 2018 and 1 June 2018. During the meetings, the Complainant was told that she had lost at the Labour Court. The Complainant asked if the current HR Manager was telling her that the Respondent would not hold new interviews because of the outcome of the Labour Court hearing. The HR Manager simply responded that she would write to the Complainant the following week.
The male candidate was appointed to the disputed post as Assistant Head, Department of Humanities, on 5 June 2018.
The Respondent wrote to the Complainant on 8 June 2018 and stated that:
“In circumstances where it has been definitively held by specialised third party employment fora that WIT has not breached the Employment Equality Acts 1998-2015, we are satisfied that it was entirely appropriate for WIT to appoint the successful candidate from the January 2013 interview process to the role of Assistant Head of Department with effect from 5 June 2018”.
It was also stated that the Complainant’s request in her grievance of April 2018 that the Respondent immediately hold new interviews for the post was denied.
The Complainant was shocked that the Respondent had awarded the promotion to the male candidate expressly based on the outcome of interviews held more than 5½ years previously and in circumstances where:
· The President’s Office had seen fit to commission an independent external review of the 2013 appointment process.
· That process had been heavily criticised in the external investigator’s report.
· The Respondent had repeatedly undertaken to run a new competition for promotion to the post in question; and
· The Adjudication Officer who considered the matter in the 2013 promotion case had concluded that the process involved victimisation of the Complainant and ordered the Respondent to run the competition anew.
Whilst it is acknowledged that the Labour Court later treated the 2013 interview process as being outside the scope of the six-month period that it could review (and overturned the Adjudication Officer’s decision on that basis), it is also noted that the Court never asserted, stated or even hinted that the interview process was devoid of victimisation. In that context, it is astonishing that the Respondent would then rely on the Labour Court’s determination to justify:
· ignoring the external investigator’s report.
· ignoring the concerns articulated by the Adjudication Officer.
· failing to abide by its’ own undertakings to the Complainant; and
· misleading the Labour Court when it was clearly intimated in their submission to the Court that it would re-run the interview process
The end result has been that the male candidate was appointed to the disputed post in 2018 based on interviews held more than 5½ years previously, where that interview process was found to have been tainted by victimisation of the Complainant and was heavily criticised in an independent report commissioned by the Respondent itself. No consideration was ever given to any skills, experience or qualifications that any of the candidates had accrued in the intervening period and no new candidates were considered.
Summary of Respondent’s Case:
In the first instance, it is pleaded by the Respondent that, on its face, no valid claim
pursuant to the provisions of the Employment Equality Act is disclosed on the complaint
form. Specifically, although the Complainant alleges that she was denied “an opportunity of applying for the post in question”, there was no evidence whatsoever that she was denied an opportunity to apply for the post on the ground of gender. Secondly, she seems to argue that theRespondent is appearing “to be attempting to justify the promotion on the basis of
interviews carried out more than 5 years ago”. Again, that is not an assertion based on
gender. It was also highlighted that that the Adjudication Officer in the original case found that the complainant had not established a prima facie case of discrimination on the ground, inter alia, of gender in regard to access to promotion.
It is accepted by the Respondent that the Adjudication Officer determined that the Complainant had been victimised but in relation to certain matters which occurred after the interview stage but also highlighted that the Labour Court, on appeal, held that the Complainant had not established a prima facie case that the acts she complained of met the definition of victimisation contained in the Act.
The true position in relation to the former recruitment process is that despite the fact that
it was challenged pursuant to the provisions of the Acts by the Complainant, all of the
challenges have been unsuccessful. At the equality stage, the Complainant failed on the
gender and race ground and no valid appeal was made by the Complainant against that
decision. While she succeeded in relation to the victimisation ground in the WRC, that
ground was rejected by the Labour Court on appeal.
The simple position is that the Respondent had a process for appointment to a
promotional vacancy, the Complainant and others applied, and the Complainant was not
successful. She challenged that process both internally and externally, and ultimately,
the matter was resolved to conclusion by order of the Labour Court dated 18th December 2017. That was the end of the matter, and the employer was entitled thereafter to implement the decision that had originally been made but which had been put on hold for very many years by reason of the Complainant’s proceedings.
The Respondent relies on the decision of the Labour Court and submits that this is an
attempt by the Complainant to, in effect, re-litigate a case in which she has been unsuccessful. The Respondent added that this is an abuse of process and should be dismissed on the basis that the complaint does not disclose a prima facie case, and secondly, the application is without merit.
Findings and Conclusions:
Victimisation is defined in section 74(2) of the Employment Equality Act as follows:
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or employer occurs as reaction to –
(a) A complaint of discrimination made by the employee to the employer,
(b) Any proceedings by a Complainant,
(c) An employee having represented or otherwise supported a Complainant,
(d) The work of an employee having been compared with that of another employee
for any of the purposes of this Act or any enactment repealed by this Act,
(e) An employee having been a witness in any proceedings under this Act or the
Equal Status Act 2000 or any such repealed enactment,
(f) An employee having opposed by lawful means an act which is unlawful under
this Act or the said Act of 2000 or which was unlawful or any such repealed
(g) An employee having given notice of an intention to take any of the actions
mentioned in the preceding paragraphs”.
The Complainant alleges that she was victimised when the Respondent would not re-run the 2013 interview process, contrary to the recommendations of an external report, because she brought proceedings.
The Respondent said that the Complainant was not victimised and that they were entitled to appoint the successful candidate from the 2013 interview process to the role in 2018.
I must therefore establish if the Complainant was subjected to adverse treatment as a result of making a complaint of discrimination pursuant to Section 74(2) of the EE Act.
The Labour Court in the case of Department of Defence v Barrett EDA 1017 stated in relation to victimisation:
“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”
That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -
1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),
2. The Complainant was subjected to adverse treatment by the Respondent, and,
3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.
Having regard to the Labour Court decision above, I am satisfied firstly that the Complainant brought proceedings on a protected ground under the Act, namely that she made complaints to the WRC in 2013 following the interview process for which she was unsuccessful.
I find secondly that she was subjected to adverse treatment by the Respondent when they failed to rerun the 2013 interview process despite an external report, commissioned by themselves, recommending that they do so, repeatedly promising the Complainant that they would and appointed the successful candidate from that impugned process instead.
I also find thirdly that the adverse treatment, namely the decisions both not to rerun the 2013 interview process despite promising the Complainant that they would and appointing the successful candidate from that process instead, was in reaction to her having taken legal proceedings. I note in the first instance that the Respondent waited over 5 years to appoint the successful candidate from the 2013 interview process to the position and find, on the basis of the evidence presented, that they waited this long because they were awaiting the outcome of the Labour Court decision, which I find was the catalyst for the adverse treatment. Specifically, I have regard the email of 8 June 2018 from the Respondent’s HR Manager to the Complainant which states: “In circumstances where it has been definitively held… that WIT has not breached the Employment Equality Acts 1998-2015, we are satisfied that it was entirely appropriate for WIT to appoint the successful candidate from the January 2013 interview process and note, crucially in my view, that there was no cogent reason presented to explain why they failed to make the appointment at any stage between January 2013 and the date of the Labour Court decision in December 2017.
In addition, I note that the decision to appoint the successful candidate from the 2013 interview process was made despite having:
· informed the Complainant on numerous occasions that they would re-run it
· obtained permission from the Department of Education in 2014 to do so and
· indicated to the Labour Court in their written submission in advance of the hearing of 21 November 2017 that they would. Specifically, the submission to the Court stated that: “The Respondent has proposed to re-run the competition process for the role however agreement is yet to be reached in respect of the composition of the interview panel”
Having regard to the foregoing, I find therefore that the Complainant was victimised when the Respondent failed to rerun the interview process, they had repeatedly committed to doing as a direct result of her having taken proceedings against them.
Section 85(A) of the Act places the burden on the Complainant of establishing a prima facia case (in this instance) that the impugned acts constitute victimisation. That section provides:
· “85A.— (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 him or her, it is for the respondent to prove the contrary.
(2) This section is without prejudice to any other enactment or rule of law in relation
to the burden of proof in any proceedings which may be more favourable to a
(3) Were, in any proceedings arising from a reference of a matter by the Authority
to the [Director General of the Workplace Relations Commission] under section 85(1),
facts are established by or on behalf of the Authority from which it may be presumed
that an action or a failure mentioned in a paragraph of that provision has occurred,
it is for the respondent to prove the contrary.
(4) In this section ‘discrimination’ includes—
o (a) indirect discrimination,
(c) harassment or sexual harassment,
(d) the inclusion in a collective agreement to which section 9 applies of a provision
which, by virtue of that section, is null and void.
(5) The European Communities (Burden of Proof in Gender Discrimination Cases)
Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under
this Act, are revoked.”
Having given careful consideration to the evidence presented, I find that the Complainant has established a prima facie case that the acts she complains of meet the definition of victimisation contained in section 74(2) of the Act, which the Respondent has failed to rebut successfully.
Discrimination in accordance with the Acts is set out in section 6 and states:
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 ’ ) which —
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person —
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
(a) that one is a woman, and the other is a man (in this Act referred to as “the gender ground”),
(b) that they are of different civil status (in this Act referred to as “the civil status ground”),
(c) that one has family status, and the other does not (in this Act referred to as “the family status ground”),
(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),
(e) that one has a different religious belief from the other, or that one has a religious belief, and the other has not (in this Act referred to as “the religion ground”),
(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),
The Burden of Proof
The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.
“85A – (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 him or her, it is for the respondent to prove the contrary.”
The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the Complainant to show that, based on the primary facts, she has been treated less favourably than the man who was offered the role that she had previously applied for.
The Respondent, referred to the explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments  21, ELR 64, which addresses the nature of the burden of proof:
“This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”
I note firstly that the Respondent appointed a male candidate to the position of Assistant Head, Department of Humanities on 5 June 2018 and find that, although the Complainant alleges that she was denied “an opportunity of applying for the post in question”, there was no evidence presented to suggest that she was denied an opportunity to apply or was not offered the post on the ground of gender.
I also note the Complainant’s assertion that theRespondent is appearing “to be attempting to justify the promotion on the basis of interviews carried out more than 5 years ago” and agree with the Respondent’s suggestion that this is not an assertion based on gender. Moreover, while the decision to appoint a male candidate to the role without an interview process in 2018 may have been unfair, given the additional qualifications and experience the candidates may have acquired since the original process in 2013, there was no evidence presented by the Complainant to suggest that it was discriminatory.
In light of the foregoing, I find that the Complainant has not established a prima facie case and that she was not therefore discriminated against on the grounds of gender.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the Complainant has established a prima facie case which the Respondent failed to rebut and that she was therefore victimised pursuant to section 74(2) of the Act.
Section 82(i)(c) of the Act provides that I can make an order for the effects of the victimisation. Section 82(4) provides:
The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection(1)(c) or (1)(f) shall be—
(a) in any case where the Complainant was in receipt of remuneration at the date
of the reference of the case, or if it was earlier, the date of dismissal, an
amount equal to the greatest of—
(i) 104 times the amount of that remuneration, determined on a weekly basis,
(ii) 104 times the amount, determined on a weekly basis, which the
Complainant would have received at that date but for the act of discrimination
or victimisation concerned, or
(b) in any other case, €13,000.
The EU Directives and the ECJ decisions require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In deciding on the amount of compensation, I noted the Complainant’s distress and her evidence that she has lost confidence that she would be successful in any future interview process with the Respondent as well as the breakdown in trust as a result of the failure of the Respondent to keep their promises to her and honour their commitments.
In addition, I have regard to the previous awards of both the Equality Tribunal in 2006 and the Labour Court, made to the Complainant following two previous successful victimisation complaints, and note that these do not appear to have had the desired objective of being dissuasive as she has once again been victimised. While I also noted her representative’s assertion that any award should compensate the Complainant for the lost earnings which arose from her non-selection following the impugned 2013 interview, it has been found that she was not discriminated against in relation to that process. Moreover, I am not satisfied, on the basis of the evidence presented, that she would have been the successful candidate if the process was re-run, given that she was only placed third in the original competition, although I do recognise that this was impugned. I have also decided that it is not practical to order that the selection process be re-run, as suggested by the Complainant’s representative, given the significant period of time that has elapsed since the appointment was made in 2018.
In accordance with Section 82 of the Act, I order the Respondent to:
· pay to the Complainant €25,000 in compensation for the distress caused to her for the effects of the victimisation and to meet the objectives of the Directives which state that awards must be “effective, dissuasive and proportionate”. The total award is for the infringement of the Complainant’s statutory rights and, therefore, is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
· communicate the identities of those on every interview panel to all candidates involved in a selection process at least three days in advance of the interview taking place.
· instigate a binding appeal mechanism for interview candidates who wish to appeal the outcome of an interview process.
As the Complainant has not established a prima facie case, I find that she was not discriminated against on the grounds of gender.
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill