FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : DUBLIN CORPORATION (RESPONDENT) (REPRESENTED BY MARQUERITE BOLGER B.L.) (INSTRUCTED BY BCM HANBY WALLACE, SOLICITORS) - AND - MS. J. MCCARTHY (COMPLAINANT) (REPRESENTED BY NIALL BEIRNE B.L.) (INSTRUCTED BY PETER MORRISSEY & CO., SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. (1) Appeal by the Company against Equality Officer's Recommendation EE2/98 and (2) Appeal by the Worker for a Determination that Recommendation EE2/98 has not been implemented. It is alleged that the claimant was discriminated against in terms of Section 2 (a) of the Employment Equality Act, 1977 and contrary to Section 3 (1) and Section 3 (6) of the Act.
BACKGROUND:
2. The background to this case is set out in the Equality Officer's Recommendation (details with the Court). The Equality Officer in her Recommendation, which was issued on the 3rd of February, 1998, found that the worker was discriminated against contrary to the terms of the Employment Equality Act, 1977.
Dublin Corporation appealed the Recommendation to the Labour Court on the 2nd March, 1998 on the following grounds:-
That the Equality Officer erred in law and in fact in recommending that
the Appellant discriminated against the Respondent in the following
manner:
(i) In failing to have any or any due regard to the appropriate
pool of comparison as between the gender breakdown of
successful and unsuccessful applicants for the position in
question.
(ii) In finding that the Respondent was discriminated against by
requirements in relation to the experience necessary for the
position in question.
(iii) In finding that the successful candidates for the position in
question did not have work experience in all relevant areas.
(iv) In finding that the Respondent was asked a question, or any
questions, which discriminated against her on grounds of her
sex at her interview.
(v) In finding that the Respondent was not treated in a manner
similar to the two successful applicants.
(vi) In finding that the Respondent was not asked the same range
of questions as the two successful applicants.
(vii) In failing to adduce any casual connection between the
Respondent's alleged less favourable treatment vis-�-vis
the two successful candidates and the Respondent's sex.
(viii) In failing to take account, or to take any adequate account,
of the appointment of a female to a subsequent vacancy.
(ix) In finding that there was no evidence to indicate that the
Appellant intended to appoint a third person from the
competition in question prior to holding another competition.
(x) In failing to have any, or any proper regard, for Sections 2
and 3 of the above named Act.
(xi) In recommending that the Respondent be offered the post of
Senior Legal Assistant with effect from January, 1997 and that
she be paid in full the necessary adjustment in salary and any
other benefits applying to the post, accruing with effect from that
date.
The complainant appealed for a Determination that EE2/98 be implemented.
The Court heard the appeal on the 14th September, 1998. Both parties expanded orally on their submissions at the hearing.
DETERMINATION:
The claimant made a complaint to the Court pursuant to the provisions of Sections 2(a), 3(1) and 3(6) of the Employment Equality Act 1977 (the Act) in relation to access to promotion from Legal Assistant to Senior Legal Assistant with the respondent. Specifically, she complained that the reason she was unsuccessful in her interview for the position of Senior Legal Assistant was that she was discriminated against on grounds of sex by the respondent.
The claimant succeeded in her claim before the Equality Officer who found that she had been discriminated against. The Equality Officer recommended that the claimant be offered the post for which she had applied as of January 1997. It is against that recommendation that the respondent has appealed to the Court.
The background to the dispute and the detailed submissions of the parties are adequately recited in the report of the Equality Officer. For the purpose of this determination they can be summarised as follows;
In substance, it is alleged that in the course of being questioned at the interview in relation to her work as a Law Clerk in a previous employment , the claimant was asked if she did typing. A male applicant who had also been employed previously as a Law Clerk was not asked this question. This, it is claimed, indicated that the interview board had a negative disposition towards the value of the claimant's work based on her gender. It is also alleged that the claimant was not given a fair interview in the following respects;
1. she was not asked any in depth questions in relation to her current
work in conveyancing,
2. she was not asked any questions on litigation,
3. she was not asked any questions on policy or given an opportunity to
expand on her leadership qualities.
The claimant submitted that the posts to be filled were in the conveyancing department and that she was the most experienced candidate in this aspect of work. Two male applicants were promoted to Senior Legal Assistant as a result of these interviews who, the claimant contends, were less qualified than her for the post.
In its defence the respondent accepts that the offending question concerning typing was asked, but says that it was for the purpose of establishing the range of duties attaching to the position of Law Clerk in a private practice, which the claimant occupied some 14 years previously. With regard to the other matters complained of, the respondent submits that the position for which interviews were held was not that of Senior Legal Assistant in the conveyancing department but that of Senior Legal Assistant to cover both conveyancing and litigation. They say that the purpose of the interview was to establish a panel of suitably qualified persons from which present and any future vacancies might be filled. The respondent denied that it practised any form of discrimination in its employment practices. In the instant case they say that the interviews were conducted fairly and that the result represented the objective assessment of the merits of the candidates by the interview board.
Evidence was given by the claimant, a fellow Legal Assistant with the respondent and a retired colleague, who gave evidence on her behalf. On behalf of the respondent evidence was given by two officials of the Corporation who were attached to the Personnel Department at the material time, by each of the three members who constituted the interview board and by the woman who was subsequently appointed as a Senior Legal Assistant as a result of the competition.
Having carefully evaluated the evidence adduced together with the submissions of the parties, the Court has reached the following conclusions;
- It was always the intention of the respondent to constitute a panel of suitably qualified persons who could be appointed as Senior Legal Assistant to cover both conveyancing and litigation.
The interview board which was appointed for the purpose of this competition was advised that it could recommend any number of suitable candidates for inclusion on the panel who should be ranked in order of merit. At that stage there were two immediate vacancies to be filled and it was anticipated that a third vacancy would arise during the currency of the panel. The members of the interview board were briefed by the Principal Officer of the Personnel Department as to the requirements for the post. They were also given general advice as to how the interviews should be conducted and provided with a copy of a booklet produced by the respondent entitled “Notes for Members of Interview Boards” which contains guidelines for those acting for the respondent on interview boards. The Board was also supplied with a marking sheet on which the candidates were to be marked under the headings “Education, Experience/Knowledge and General Suitability”
These guidelines indicate that the interview should take the form of purposeful conversation rather than an examination. It goes on to suggest that questions should be worded in such a way that would leave the candidates doing most of the talking.
The manner in which the interviews were subsequently conducted was somewhat unsatisfactory. The Board did not pursue a common line of questioning with all candidates nor did they maintain adequate notes on the performance of the candidates. However the general format of the interviews was in accordance with the guidelines and the Court is satisfied that the result was a fair and objective assessment of the overall suitability of the candidates.
The Court is also satisfied on the evidence that the Interview Board decided that three candidates met the standard of general suitability and they were ranked accordingly. Two male candidates were ranked 1st and 2nd respectively, and a female candidate was ranked 3rd. The decision of the Interview Board was then conveyed to the Principal Officer of the Personnel Department and confirmed.
The Principal Officer of the Personnel Department decided to release the names of the first two successful candidates who were appointed to two known vacancies as they arose and to hold in reserve the name of the third candidate in anticipation of a further vacancy arising. All of the other candidates, including the third candidate, were advised that they had been unsuccessful. The third candidate was subsequently formally included on the panel by formal order made on 22nd April 1997. The Court accepts that this was in line with the general practice then followed by the respondent. The Court also accepts that the reality is that three candidates were selected for appointment as Senior Legal Assistant at the interviews conducted in October 1996. Two of these candidates were male and one female.
The claimant applied for inclusion in the panel believing that it was to fill vacancies specific to the conveyancing department. It was in that erroneous belief that she prepared for and attended at interview. This, in the Courts view, may have caused the claimant to under rate the importance of addressing the interview board more fully on her knowledge of litigation or on her ability and willingness to expand on that knowledge. The respondent was not responsible for the claimant's misunderstanding in that regard.
In the course of her interview the claimant was questioned in relation to her previous work experience as a Law Clerk with a firm of Solicitors in private practice and was asked if she did typing. A male candidate with similar previous work experience was not asked this question. The Court is satisfied, as a matter of probability, that the claimant was asked this question because she is a woman.
While the claimant did suffer some distress at being asked this question, (which the Court regards as objectionable and discriminatory) the Court is satisfied that neither the question itself, nor the claimant's response to it materially affected the outcome of the interview or the ranking which the claimant received in the competition.
While holding that the claimant was discriminated against by being asked the offending question, in light of the conclusion set out above, the recommendation of the Equality Officer that the claimant be appointed to the position for which she applied, cannot stand.
The Court holds that in putting the offending question to the claimant at the interview, the respondent discriminated against her within the meaning of Section 2(a) of the Act and contrary to Section 3(1) of the Act. The Court determines that the appropriate redress is compensation for the distress suffered, which the Court measures at £1,000. The Court awards the claimant compensation in that amount.
The recommendation of the Equality Officer is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
5th October, 1998______________________
L.W./D.T.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.