Labour Court Database __________________________________________________________________________________ File Number: AEE864 Case Number: DEE872 Section / Act: S21EE Parties: THE REVENUE COMMISSIONERS - and - IRISH TAX OFFICIALS' UNION |
Appeal, by both parties, against an Equality Officer's Recommendation No. EE 6/86 concerning a dispute as to whether or not the Commissioners discriminated against four named female Clerical Assistants (Taxes) on the basis of their sex in a competition for promotion to the grade of Tax Officer.
Recommendation:
For technical reasons the Determination cannot appear in this field.
It is, however, held on the full document.
Division: CHAIRMAN Mr Collins Mr O'Murchu
Text of Document__________________________________________________________________
AEE864 THE LABOUR COURT DEE2/87
EE686 EMPLOYMENT EQUALITY ACT, 1977
DETERMINATION NO. 2 OF 1987
Parties: THE REVENUE COMMISSIONERS
and
IRISH TAX OFFICIALS' UNION
Subject:
1. Appeal, by both parties, against an Equality Officer's
Recommendation No. EE 6/86 concerning a dispute as to whether or
not the Commissioners discriminated against four named female
Clerical Assistants (Taxes) on the basis of their sex in a
competition for promotion to the grade of Tax Officer.
Background:
2. In November, 1984 the Revenue Commissioners announced an
internal competition based on interview for promotion from the
grade of Clerical Assistant (Taxes) to the grade of Tax Officer.
Officers of both grades are departmental civil servants and serve
in Dublin and thirteen provincial Tax Districts.
3. Approximately 654 Clerical Assistants applied to take part in
the competition and were called for interview by one of four
interview boards set up on a regional basis. These boards, which
were known respectively as boards 'A', 'B', 'C' and 'D', used the
following marking system to assess the candidates:-
Length and quality of official experience 100 marks
Intelligence and general knowledge 100 marks
General suitability 100 marks.
Additional marks were awarded to candidates who had an established
record of proficiency in Irish.
4. In order to assist the boards, the supervisor of each district
office was asked to complete an assessment form in respect of each
candidate under his/her supervision covering such matters as
conduct, performance and order of merit as compared with other
candidates from the same district.
5. Of the 654 candidates who applied to take part in the
competition, approximately 169 (26%) were males and 485 (74%) were
females. Based on an amalgamation of the results of the four
boards, a total of 120 candidates were placed on a promotion panel
which is currently being used to fill Tax Officer vacancies as
they arise and is expected to be exhausted. Those 120 successful
candidates included 49 men and 71 women, i.e. approximately 29% of
the male applicants and 15% of the females.
6. The four complainants, all of whom work in the Cork Tax
Office, were interviewed by board 'D'. This board interviewed and
placed in order of merit a total of 21 male candidates and 97
female candidates from offices in Cork, Waterford, Kilkenny and
Wexford and the first 27 were placed on the promotion panel.
These 27 included 13 men and 14 women, or approximately 62% of the
males and 14% of the females interviewed by board 'D'. In the
Cork office alone, where there 15 male candidates and 54 females,
11 (73%) of the males and 4 (7%) of the females were successful in
obtaining a place on the panel. None of the complainants was
placed on the panel.
7. In view of the result of the competition in area 'D', and in
particular the result in the Cork Office, and for a variety of
other reasons, the four complainants believed that they had been
discriminated against on the basis of their sex. Accordingly,
they served a questionnaire on the Commissioners under section 28
of the Act seeking an explanation in the matter. They were not,
however, satisfied with the response that they received and
requested the Irish Tax Officers' Union to refer the dispute on
their behalf to the Labour Court. The Court referred the dispute
to an Equality Officer for investigation and recommendation. On
30th September, 1986 after investigating the dispute the Equality
Officer issued the following Recommendation:-
"In any dispute concerning alleged discrimination, it seems
reasonable to me to expect that the person or persons making
the allegation should have prima facie evidence for their
allegation and to dismiss as without proper or sufficient
foundation any allegation for which no such evidence is
presented. On the other hand, where such evidence has been
presented, and the employer concerned fails to give a
convincing alternative explanation for his actions, it is
equally reasonable to find in favour of the complainants.
By prima facie evidence I mean evidence which in the absence
of any convincing contradictory evidence by the employer
would lead any reasonable person to conclude that
discrimination had probably occurred.
In the case here concerned, the complainants submitted a
variety of grounds for their allegation of discrimination
and it was therefore necessary for me to evaluate these
grounds before deciding whether, in fact, the Commissioners
had any case to answer. These grounds were basically as
follows:-
(i) that the success rate of male candidates
interviewed by board "D" was very
substantially higher than the success rate of
females, particularly in the Cork Tax Office;
(ii) that each of the complainants had received a
more favourable assessment from the supervisor
of the Cork Tax Office than at least eight of
the eleven successful male candidates from
that same office;
(iii) that there was nothing about the backgrounds
of the male candidates in terms of such
matters as educational qualifications, length
of service or proficiency in Irish which would
have given them an advantage over the women;
and
(iv) that one female member of the interview board
had previously demonstrated discriminatory
attitudes towards female staff in the Cork Tax
Office.
Having considered these four grounds in the light of the
submissions of both parties, I do not consider that the
complainants have substantiated their allegation that a
certain member of interview board 'D' was, from the outset,
biased against female candidates. I am satisfied, however,
that the other three grounds submitted by the complainants
are substantially correct and that they constitute prima
facie evidence of sex discrimination.
Having reached my latter conclusion, it was necessary for me
to consider whether the response of the Commissioners
constituted a convincing alternative explanation for the
alleged discrimination. That response was basically as
follows:-
(i) that all the candidates from area 'D' were
interviewed, assessed and placed in order of
merit on the same basis and without regard to
their sex;
(ii) that due regard was given by the interview
board to the assessment made in respect of
each candidate by his or her supervisor but
that, in the context of the selection
procedure and marking system adopted, and
because of the difficulty of comparing
different supervisors' assessments,
performance at interview was necessarily of
prime consideration in the determination of
the order of merit; an excellent assessment
was no guarantee of success in the case of any
candidate, either male or female. (The
Commissioners chose not to produce in evidence
the order of merit of the candidates and the
assessments they had received from their
supervisors);
(iii) that at the conclusion of the interviews the
interview board members noticed the higher
success rate of male candidates but were
satisfied that this was genuinely due to the
better performance at interview of the male
candidates and not to any form of sex
discrimination;
I have given careful consideration to the Commissioners'
response but, on the balance of the actual evidence
presented, I am not satisfied that the interview board did
not discriminate, either intentionally or unintentionally,
in what was clearly a very subjective selection process and
could easily have facilitated biased judgement. It is not
necessarily the case that I doubt the sincerity of the two
interview board members that I met but it seems to me that
mere statements that discrimination did not occur cannot
rightly be accepted by an Equality officer as an adequate
response in a case where he considers that there is prima
facie evidence which strongly suggests that it probably did
occur.
As an appropriate remedy, the complainants requested that
their names be added to the end of the promotion panel. In
this regard I consider that in circumstances in which an
employee has suffered discrimination in relation to
placement on a promotion panel, it is only fair and
reasonable that the benefit of any doubt as to whether or
not that employee would have been placed on the panel, if
there had been no discrimination, should be given to the
employee rather than to the employer. In other words, the
onus should be on the employer to show that even if the
alleged discrimination had not occurred the employee
concerned probably would not have been placed on the
promotion panel.
In relation to this question the Commissioners re-iterated
that there had been no discrimination against the
complainants and elected not to produce in evidence the
order of merit decided by board 'D' and the position of the
complainants relative to other candidates. In the
circumstances, I have no option but to find that the
Commissioners have not proved that the complainants probably
would not have been placed on the promotion panel even if
the alleged discrimination against them had not occurred.
As I am satisfied that the alleged discrimination did occur,
I recommend that the names of the four complainants be added
to the promotion panel and, on the understanding that the
panel is expected to be exhausted, that they be promoted
from the panel in the same order as they were placed in
relation to each other by board'D'"
8. On 7th November, 1986 the parties appealed to the Labour Court
against that Recommendation in accordance with Section 21(3) of
the Employment Equality Act, 1977. The Court heard the appeals on
11th December, 1986.
9. The written submissions made to the Court are in the
appendices to this Determination. The parties enlarged on these
submissions at the Court hearing. The Commissioners supplied
further statistical information to the Court on 9th January, 1987.
DETERMINATION:
For technical reasons the Determination cannot appear in this field.
It is, however, held on the full document.
10. The Commissioners in their appeal have argued that there are
no prima facie grounds suggesting that the interview board
discriminated against women and have submitted the results of the
interview boards showing the placing of candidates in order of
merit. That statement is set out in Appendix iii to this
determination.
11. The Court has examined these results and notes the following
points. There were 117 candidates interviewed by Board D of whom
96 were female. One hundred and thirteen (113) passed the
interview of whom 93 were female. Of the 27 candidates sent
forward to the promotion panel 13 were female. Thus while 82% of
the interviewees were female only 48% of the those who were placed
on the panel were female. The success rate for men was 66.66% and
the success rate for women only 13.5%. At first sight this may
look like discrimination. However the fact that 48% of the
successful candidates were female was not determined by the Board
which conducted the interviews but rather by the fact that Board D
was allocated 27 places on the panel. The Court therefore
considers that a wider measure of discrimination must be used in
this case.
12. It is fair to assume that in a group as large as 100 the
abilities of the female applicants is on average equal to the
abilities of the male applicants and that therefore the same
proportion should be successful. However, it cannot be expected
that the proportions will be exactly equal. In order to decide
whether the variation in the proportions in this case are beyond
what would normally be expected due to random factors the Court
has calculated on a statistical basis the results to be expected
in the absence of discrimination. These are shown below.
Results of Board D
Male Female Total
Best Quartile 14 14 28
2nd Quartile 4 24 28
3rd Quartile 2 26 28
Worst Quartile 1 28 29
Total 21 92 113
Expected results with no discrimination.
Male Female Total
Best Quartile 5.2 22.8 28
2nd Quartile 5.2 22.8 28
3rd Quartile 5.2 22.8 28
Worst Quartile 5.4 23.6 29
Total 21 92 113
13. The Court considers that the difference between the results
which would be expected without any preferential treatment having
been afforded to male candidates and the actual results is so
large that it is not due to a real difference in the qualities of
the applicants or to random variations in the assessment of the
applicants but is due to consistently less favourable treatment of
the female candidates by reason of their sex.
14. An accepted way of measuring the difference between the
actual and expected outcome of events is the Chi-Square test. The
Chi-Square value for Board D is 25.42 (calculated from the tables
above) and it is outside the bounds of reasonable probability that
such a result could occur unless the interview was consciously or
unconsciously discriminating against the female candidates. It is
also significant that the Chi-Squared values for Board A, B and C
were 1.07, 5.70 and 9.74 respectively. On the basis of those
results it is most unlikely that Boards A or B were discriminating
and Board C is doubtful. However the results in Board D are so
out of line with the results in the other areas that some
explanation is called for.
15. The Court does not find that the Commissioners have shown any
alternate reason why the proportion of female candidates in Board
D is as it is and therefore finds that this Board was in fact
discriminating against female applicants.
16. The Court next considered whether bias which the Board
operated did in the event have a detrimental affect on the
promotional prospects of the four claimants in this case.
17. If there had been an equal proportion of females in the first
27 candidates then 27/113 of the females would have been on the
panel i.e. approximately 24% or 22 of the female candidates would
have been on the panel. As it was only the best 13 female
candidates were placed on the panel. If there had been no bias a
further 9 female candidates would probably have been placed on the
panel. This would have included Ms. Power and Ms. Kiely but not
Ms. Horgan or Ms. O'Neil. The Court therefore upholds the
Commissioner's appeal in relation to the latter two candidates.
18. In accordance with Section 22(a) of the Employment Equality
Act, 1977, the Court holds therefore that there was discrimination
as defined in section 2(a) of the Act in relation to all four
claimants but finds that only Ms. Power and Ms. Kiely have been
adversely affected. The other two claimants would not have been
placed on the panel on the basis of their merits irrespective of
their sex.
19. In considering what recommendation and compensation is
appropriate the Court feels that the correct course of action is
for Ms. Power and Ms. Kiely to be returned to the position they
would have enjoyed if they had not been discriminated against. It
is of course impossible to say exactly what place they would have
been awarded on the panel if they had been fairly treated. In all
fairness the Court considers that Ms. Power would have been
awarded 20th place and Ms. Kiely 25th in the order of merit on
Board D. The Court therefore recommends that they now be given
the same benefits in terms of promotion and pay as has been given
or will accrue to the candidates who were actually awarded the
20th and 25th place on Board D. If Ms. Power or Ms. Kiely have
suffered any financial loss as a result of not already having the
benefit of promotion then they should be paid compensation equal
to the amount of that loss. The Court so recommends and awards in
accordance with Section 22(b) and (c) of the Act.
~
Signed on behalf of the Labour Court
John M. Horgan
_________________________
Chairman.
25th May, 1987.
T.O'M./U.S.
APPENDIX 1
Employment Equality Act, 1977
Equality Officer's Recommendation No. EE6/1986
Revenue Commissioners
and
Four Departmental Clerical Assistants (Taxes)
Statement of Case on behalf
of the Revenue Commissioners
Employment Equality Act, 1977
Equality Officer's Recommendation No. EE6/1986.
Revenue Commissioners
and
Four Departmental Clerical Assistants (Taxes)
Statement of case on behalf of the Revenue Commissioners
A case was referred to the Labour Court under Section 19 of the
Employment Equality Act, 1977 on behalf of four Departmental
Clerical Assistants (Taxes) alleging that the Revenue
Commissioners had discriminated against them on the basis of their
sex in a competition for promotion to Tax Officer.
The Court referred the dispute to an Equality Officer for
investigation and recommendation. The Equality Officer issued a
recommendation No. EE6/1986. The Commissioners lodged an appeal
under Section 21(3)(d) of the Employment Equality Act, 1977
against this recommendation.
The Revenue Commissioners now submit the following matters for
consideration by the Labour Court in relation to the dispute.
1. It remains the Commissioners' contention that the
complainants were not discriminated against as alleged. The
reason they were not place on the promotion panel was because
in the opinion of the selection board they did not reach a
sufficiently high standard at the interview.
The Commissioners are therefore unable to accept the Equality
Officer's conclusion that discrimination did occur.
2. In his recommendation the Equality Officer identified four
grounds on which the claimants allegation of discrimination
was based. The Commissioners wish to make observations as
follows on the grounds identified.
(a) The claimants allegation that a certain member of
interview board D was, from the outset, biased against
female candidates was found not to have been
substantiated.
The Commissioners consider that this finding not alone
exonorates the individual member of the board but also
answers the allegations made in various sections of the
claimants statement of case that details relating to
the personal circumstances and history of candidates
were taken into account without such matters being
explored at the interview.
(b) In referring to the assessment of candidates by
superiors and the regard which the interview board gave
to these assessments the Equality officer indicates
that the Commissioners chose not to produce in evidence
a list giving the order of merit of candidates
interviewed by board D and details of the assessments
received by them.
The Commissioners did in fact produce such a list for
the information of the Equality Officer. They were
not, however, prepared to have this list published as
it would make available information which must of
necessity be regarded as confidential and proper only
to an individual and his/her superior.
The Commissioners are prepared, at this stage, to make
available a list giving in respect of the candidates
interviewed by board D
. Order of merit as determined by Interview Board
. The District where serving
. The recommendation of the District Inspector
. The placing given to each candidate within their
District.
All names except those of the four complainants have
been deleted from the list on the basis of
confidentiality. The list is at Appendix 1.
(c) The point is brought out that the interview board
members at the conclusion of the interviews noticed the
higher success rate of male candidates but were
satisfied that this was genuinely due to the better
performance of the male candidates at the interview and
not to any form of sex discrimination.
The Commissioners wish to state that the higher success
rate of males was, in fact, noticed during the
interviews but that the board had no option but to
allow the results as they were emerging to stand. Had
the interview board interfered with the results at that
stage such action would obviously have involved
discrimination against male candidates.
The Commissioners are satisfied, therefore, that the
members of interview board D fulfilled their obligation
to select the best qualified candidates for promotion
to the grade of Tax Officer and that the results as
they relate to the Cork Tax District are a reflection
of this fact rather than the basis for a charge of
discrimination on the grounds of sex.
(d) The recommendation made by the Equality Officer that
the names of the four complainants should be added to
the promotion panel and they they should be promoted
has been considered by the Commissioners.
It is pointed out that implementation of this
recommendation would mean promoting two of the
complainants who would not have been placed on the
promotion panel even if all the men sent forward to the
panel by board D were excluded. Such action would
surely have to be regarded as an injustice to those
candidates who like the claimants were found suitable
for promotion by board D but were placed ahead of the
two claimants in question. It is felt that such a
course of action could hardly be construed as an
equitable solution even if the allegation of
discrimination were to be accepted.
3. It appears to the Commissioners that the Equality Officer's
recommendation in favour of the complainants is based, to a
very large extent, on an acceptance by him of their
contention that a statistical analysis of the results in the
Cork Tax Office forms a strong basis for the conclusion that
the female candidates there were discriminated against
because of their sex. The Commissioners are concerned about
the implications of such a view on their policy in relation
to the holding of competitive interview competitions. they
have in mind in particular that the recommendation could be
construed as introducing a new element into the competitive
system, namely the requirement that promotion panels be drawn
up by reference to some form of quota on a sex basis. The
Commissioners' opinion is that such a requirement is not
envisaged by the equality legislation.
4. The Equality officer has indicated that he considers that
there is prima facie evidence which strongly suggests that
discrimination probably did occur.
The Commissioners for their part having regard to the points
made in this submission and to the balance of the evidence
overall would contend that sufficient evidence exists to
suggest the contrary.
5. The written submission to the Equality Officer on behalf of
the claimants is at Appendix 2.
The Revenue Commissioners response to this submission
In making this response the Commissioners have excluded
reference to certain paragraphs of the claimants submission
which relate to matters of fact which are not disputed or
which relate to matters on which the Commissioners see no
reason to comment.
6. The Commissioners wish to refer to Equality Officer's
Recommendation No. EE5/1986 concerning a dispute between
Dublin Corporation and Ms. P. Gibney. The Equality Officer's
recommendation in this case was that Ms. Gibney had not
established a prima facie case of discrimination within the
meaning of Section 2(a) of the Employment Equality Act, 1977.
In reaching this conclusion he took into account the fact
that Ms. Gibney did not produce factual evidence sufficient
to satisfy any reasonable person that she was a more suitable
candidate than at least one specifically named male on the
firefighter panel in terms of the criteria used by the
interview board to assess all the various candidates.
It is the Commissioners contention that the claimants in the
case under consideration have not produced factual evidence
of the nature deemed necessary in the Gibney case. In the
absence of such evidence the Commissioners feel that, as in
the Gibney/Corporation dispute, a prima facie case of
discrimination has not been established by the claimants.
7. The Revenue Commissioners accordingly ask that the Labour
Court find that there was no discrimination as alleged.
----------
APPENDIX 2
Submission by Irish Tax Officials' Union
to the Labour Court on behalf of Four
Female DCA's in the case of
I.T.O.U.
-v-
The Revenue Commissioners
Regarding the appeal against Equality
Officers Recommendation - EE6/86
--------------
AEE 86/4
1. Both the ITOU and the Revenue Commissioners have appealed in
this case.
2. The ITOU appeal is based on the non-implementation of the
Equality Officers recommendation by the Revenue
Commissioners.
3. The basis of the ITOU appeal is set out in a letter dated 7th
November 1986 to the Labour Court.
Briefly this is
(a) that the Equality officers recommendation has not been
implemented by the employer.
(b) that as a result of the non-implementation of the
recommendation, together with the employers intention
to close the promotion panel, that the original
recommendation will no longer ensure the promotion of
the complaintants. As such it requires to be altered
to have the same effect as originally intended i.e. the
promotion of the four claimants.
4. the basis of appeal by the employer is set out in a letter
dated 7th November to the Court.
4.1 Para. 1
As this is simply a denial of discrimination no comment is
required.
4.2 Para 2 (a)
The Equality Officer found that the Unions allegation that
one member of the Interview Board was biased, from the
outset, as unsubstantiated or unproven.
This could not be construed, as implied by the employer, as
meaning that no discrimination by that individual or by the
Board as a whole took place. Neither could it be construed
as meaning that no regard was had by the Board to personal
factors or history of candidates apart from that available
from the interview itself or the Inspectors recommendation.
4.3 Para 2 (b)
At no stage were the Union or the complaintants given access
to the order of merit of candidates interviewed by the board.
Neither was any access given to the Union or to the
Complaintants in respect of the assessments or
recommendations of candidates by their superior officers i.e.
Inspectors of Taxes.
Any information available to the Union and complaintants was
received from other members of the Union and from sources
apart from the employer.
If the Revenue Commissioners are now prepared to make such
information available it is essential, for it to be in any
way meaningful, that:-
(a) Copies be made available to the Union for detailed
examination.
(b) that the documentation, if it does not include names,
does include:-
(i) the sex of each officer
(ii) the Tax District and section e.g.
Cork PAYE, in which each officer was serving
(iii) the name (or other form of indentification) of
the Inspector of Taxes who made the report and
recommendation on each officer.
The Revenue Commissioners have not shown any good reason why,
as they claim, the superior officers recommendations were
effectively ignored by the Interview Board.
The criteria by which the Interview Board was required to
select candidates clearly includes some items (e.g. quality
of official service, general suitability) which could not be
fairly determined without some reference to the Inspectors'
recommendations.
In the case of Cork PAYE, all 43 recommendations (11 male, 32
female) were made by the same Inspector.
The Revenue Commissioners have not given any details as to
the operation of this particular Interview Board or any
guidelines given to it.
Any interpretation of the "results" of the selection process
by this Board must take account of the circumstances of the
setting up and method of operation of the Board.
The questions outlined at Appendix 1 must be answered before
any interpretation is attempted of the documentation which
the employer is prepared to make available.
4.4 Para 2 (c)
The Revenue Commissioners stated that during the course of
the Interview the Board noticed that the male success rate
was higher than the female success rate.
The candidates in Cork were selected for interview in
alphabetical order.
While it may merely be a coincidence, three out of the four
unsuccessful male candidates in Cork had surnames beginning
with the letter "S" - Sheehan, Sexton, Stack.
There were no candidates with surnames beginning with an
initial which was further down the alphabet than "S".
The "S" group were therefore the last group to be
interviewed.
4.5 Para 2 (d)
Without seeing and examining the detailed list of the order
of candidates, it is not possible to comment fully on the
employers suggestion that two of the 4 complaintants did so
badly at the interview as to be placed very far down the
list.
However the following factors must be taken into account.
To ensure the success of male candidates in Cork it would be
necessary to ensure:-
(a) that the majority of female candidates in Cork
generally received lesser marks than the males.
(b) that in each unit the female candidate got lesser marks
than the male candidates(s) in that unit.
(c) that female candidates (unsuccessful) got lesser marks
than successful candidates (male and female)
interviewed by the Board outside of the Cork Tax
District (The candidates from all districts interviewed
by this Board were placed on the same list).
If this did not occur the proportion of successful Cork
candidates would be greater than that from other areas. The
success rates of Cork candidates was 21.7%. The success
rates of candidates from other Districts covered by this
Board was 23.5%.
4.6 Para. 3
The Equality Officer indicated that based on the success
rates of female candidates in Cork taken in the context of:
(a) the success rates of females in the three other groups
interviewed by different Boards for this competition.
(b) the success rates of female candidates interviewed by
this Board outside of the Cork Tax District.
(c) the absence of any factor that might justify the
difference in success rates e.g. Different levels of
service or experience, better personal qualifications
or experiences, better Inspectors recommendations,
bonus marks for knowledge of Irish.
that there was prima facie evidence of discrimination and
that this was not satisfactorily explained by the
employer.
The employers suggestions that this implies that male and
female quotes might be required cannot reasonably be taken
from the Equality Officers decision.
4.7 Para. 4
As this is merely a denial of discrimination no comment is
required.
4.8 The ITOU requests on behalf of the complaintants that the
essence of the Equality Officers recommendation i.e. that
that the 4 complaintants be promoted, be upheld and amended
as required to ensure the same effect.
APPENDIX 3
Statement of the results of the interview Boards
(See main File)