Labour Court Database __________________________________________________________________________________ File Number: AEE952 Case Number: DEE895 Section / Act: S21EE Parties: THE COMMISSIONER, AN GARDA SIOCHANA (Represented by ANTHONY KERR, B.L.) - and - GARDA MARY FLYNN;FINBAR CAHILL & CO., SOLICITORS |
Appeal by the Commissioner, An Garda Siochana against Equality Officer's Recommendation EE 1/95. It was alleged that the claimant was discriminated against by the Commissioner because of her sex in terms of Section 3 of the Employment Equality Act, 1977 and contrary to Section 2(a), (b) and (c) of the Act.
Recommendation:
The claimant's case hinges on her argument that had she not been
on maternity leave, she would have been considered, and found to
be the most suitable candidate, for this particular post.
Having considered all the submissions made, the Court is satisfied
that the method of selection for the post in question was less
than satisfactory and lacked transparency. There appears to have
been no formal procedure for assessing the relevant merits of the
candidates under consideration. The basis for the decision on the
eventual appointment appears to have been "consultation with
middle management" and a Chief Superintendent's "knowledge of the
member, acquired over two and a half years".
Given that the Commissioner relied on this "knowledge" of the
claimant and on the "middle management view" of the claimant as
the basis for the decision, it was important to examine the
evidence for such knowledge or such views.
The following observation was made to the Court on behalf of the
Commissioner in relation to the claimant:-
"In the field of social skills, interpersonal relations and
teamwork, she did not meet my overall assessment or my
requirements to satisfactorily fill the position."
No satisfactory evidence was produced to substantiate the above
observation, and it was accepted by the claimant's superiors that
they had never had occasion to reprimand her nor had the supposed
"deficiencies" been brought to her notice at any time prior to
this dispute.
Indeed, the claimant herself outlined the activities both within
and outside the Garda Siochana in which she was involved, and the
level of such involvement, all of which she argued would tend to
contradict her superior's opinions of her ability as "a
team-player".
However, despite the unsatisfactory nature of the selection
process, the real issue in this case is whether the claimant
would, as she claims, have been considered for, and appointed to,
the post, had she not been on maternity leave.
While the Court can sympathise with the claimant in this case, and
accepts that no evidence has been produced to support her
perceived deficiencies, the Court does not find that her
non-appointment resulted from her being on maternity leave.
The Court's findings are that the claimant was considered for the
post, despite being on maternity leave, but that given the
selection process, and her superior's assessment of her work
performance and personality, she was not appointed.
The Court's view is that this decision would have been made for
the reasons outlined regardless of whether the claimant was in
work or on leave.
The Court, therefore, holds that there was not discrimination
within the meaning of the Employment Equality Act, 1977 and allows
the appeal of the Commissioner.
Division: Mr Flood Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
AEE952 DETERMINATION NO. DEE895
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
PARTIES:
THE COMMISSIONER, AN GARDA SIOCHANA
(REPRESENTED BY ANTHONY KERR, B.L.)
AND
GARDA MARY FLYNN
(REPRESENTED BY FINBAR CAHILL & CO., SOLICITORS)
SUBJECT:
1. Appeal by the Commissioner, An Garda Siochana against
Equality Officer's Recommendation EE 1/95. It was alleged
that the claimant was discriminated against by the
Commissioner because of her sex in terms of Section 3 of the
Employment Equality Act, 1977 and contrary to Section 2(a),
(b) and (c) of the Act.
BACKGROUND:
2.1 The background to the case is set out in the Equality
Officer's Recommendation (details supplied to the Court).
The Equality Officer in his Recommendation, which was issued
on 12th January, 1995, found that the Commissioner had
discriminated against the claimant, contrary to the terms of
the Employment Equality Act, 1977.
2 The Commissioner appealed the Recommendation to the Labour
Court on 14th February, 1995, on the grounds that the
Equality Officer had erred in law and in fact, in
particular:-
(a) in finding that the Commissioner had discriminated
against the claimant on the grounds of her sex,
(b) in ignoring the contents of paragraph 5.5 of his own
report when reaching his conclusions. That paragraph
contains the official policy on the advertising of
designated post vacancies. It contains the reason why
the post in question was not advertised resulting in no
member of the force having the opportunity to apply for
the vacancy. All members of Garda Rank were treated in
the same way, therefore, denying the Garda the
opportunity to apply could not have been discrimination.
(c) In failing to deal in any adequate manner with the case
put forward by the respondent or indeed to accept the
evidence of the Chief Superintendent on whose
recommendations the appointment was made.
(d) In ignoring the statutory duties and responsibilities
imposed on the Garda Commissioner by Section 8 of the
Police Forces Amalgamation Act, 1925.
(e) In concluding that the Garda had an automatic
entitlement to the post in question because of her
"superior qualifications" (paragraph 6.11) which were
not required for the post.
(f) In totally disregarding the Chief Superintendent's
record of what took place at the meetings which he had
with the Garda on the 12th and 15th July, 1993
(paragraph 6.9).
3. The Court heard the appeal on the 6th September, 1995.
DETERMINATION:
The claimant's case hinges on her argument that had she not been
on maternity leave, she would have been considered, and found to
be the most suitable candidate, for this particular post.
Having considered all the submissions made, the Court is satisfied
that the method of selection for the post in question was less
than satisfactory and lacked transparency. There appears to have
been no formal procedure for assessing the relevant merits of the
candidates under consideration. The basis for the decision on the
eventual appointment appears to have been "consultation with
middle management" and a Chief Superintendent's "knowledge of the
member, acquired over two and a half years".
Given that the Commissioner relied on this "knowledge" of the
claimant and on the "middle management view" of the claimant as
the basis for the decision, it was important to examine the
evidence for such knowledge or such views.
The following observation was made to the Court on behalf of the
Commissioner in relation to the claimant:-
"In the field of social skills, interpersonal relations and
teamwork, she did not meet my overall assessment or my
requirements to satisfactorily fill the position."
No satisfactory evidence was produced to substantiate the above
observation, and it was accepted by the claimant's superiors that
they had never had occasion to reprimand her nor had the supposed
"deficiencies" been brought to her notice at any time prior to
this dispute.
Indeed, the claimant herself outlined the activities both within
and outside the Garda Siochana in which she was involved, and the
level of such involvement, all of which she argued would tend to
contradict her superior's opinions of her ability as "a
team-player".
However, despite the unsatisfactory nature of the selection
process, the real issue in this case is whether the claimant
would, as she claims, have been considered for, and appointed to,
the post, had she not been on maternity leave.
While the Court can sympathise with the claimant in this case, and
accepts that no evidence has been produced to support her
perceived deficiencies, the Court does not find that her
non-appointment resulted from her being on maternity leave.
The Court's findings are that the claimant was considered for the
post, despite being on maternity leave, but that given the
selection process, and her superior's assessment of her work
performance and personality, she was not appointed.
The Court's view is that this decision would have been made for
the reasons outlined regardless of whether the claimant was in
work or on leave.
The Court, therefore, holds that there was not discrimination
within the meaning of the Employment Equality Act, 1977 and allows
the appeal of the Commissioner.
~
Signed on behalf of the Labour Court
21st November, 1995 Finbarr Flood
L.W./A.K. ---------------
Deputy Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Larry Wisely, Court Secretary.