Labour Court Database __________________________________________________________________________________ File Number: AEE915 Case Number: DEE992 Section / Act: S21EE Parties: A WORKER - and - THE DEPARTMENT OF INDUSTRY AND COMMERCE |
An appeal by the Public Service Executive Union (the Union), on behalf of the worker, for the implementation of Equality Officer's Recommendation No. EE3/1991 and an appeal by the Department of Industry and Commerce (the Department) against the Equality Officer's Recommendation. The worker alleged that the Department in denying her access to promotion on 17th April, 1989, discriminated against her on the grounds of her sex and/or marital status within the meaning of Section 2 of the Employment E
Recommendation:
3. 1. The premise adopted by the Equality Officer in her
examination of this case is that the abilities of female
executive officers are on average equal to the abilities of
male executive officers and this was not disputed by the
Department. It follows, therefore, in the absence of any
identified and valid reason, that the proportion of female
executive officers promoted should approximate to the
proportion of male executive officers promoted.
2. In the Court's view the period reviewed by the Equality
Officer was appropriate and, on the statistics used, disclosed
a disproportionately higher number of male executive officers
had been promoted. The Chi square test applied to the
statistics showed a less than 1% likelihood of the actual
outcome. In the absence of a coherent explanation from the
Department of the reason for such an outcome, the Court
considers that the Equality Officer was correct in concluding
that the lower proportion of female executive officers
promoted resulted from bias on grounds of sex.
3. The Department submitted to the Court that the
statistics presented by the Union and used by the Equality
Officer were defective in so far as they failed to take
account of a number of female officers who had clearly
indicated that they were not interested in promotion. But
even if the figures were revised to take full account of the
Department's claim in this regard, the Chi square test would
still show a 20% possibility of the actual outcome. The Court
considers that this result would not invalidate the conclusion
of the Equality Officer regarding bias.
4. The Department also submitted that the use of statistics
by the Equality Officer was an unacceptable means of
determining whether or not discrimination had occurred. The
Equality Officer did not use the statistics to determine
whether discrimination occurred in this case but used them to
establish the trend of promotions over a three year period.
On the basis of her findings the Equality Officer concluded
that discrimination on grounds of sex had occurred in this
period and that, therefore, the onus fell on the Department to
show that it had not occurred in this case. In these
circumstances the Court considers that the statistical
information was legitimately and correctly used by the
Equality Officer.
5. The essential question left to be determined by the
Court is whether the Department's decision not to promote the
claimant to the position of acting higher executive officer in
April, 1989 was or was not based on grounds of sex. The
burden of proof that it was not so based rests with the
Department.
6. The Department argued that, where merit is the criterion
for promotion, there must inevitably be subjectivity in coming
to a decision as to which officer is considered the most
suitable for promotion. While this reasoning is valid, the
Court considers that the degree of subjectivity could have
been minimised if all candidates were judged by the Department
against appropriate and known criteria rather than by random
views and recollections.
7. Having regard to the procedures adopted, the top-level
qualifications of both the claimant and the successful
candidate and the superior service of the claimant, the Court
does not consider that the Department has made a compelling
case that the selection was not discriminatory.
8. Accordingly the Court rejects the Department's appeal
and upholds the recommendation of the Equality Officer. The
Court further determines that the Equality Officer's
Recommendation in this case be implemented.
Division: Mr Heffernan Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
AEE915 DETERMINATION NO DEE992
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21
PARTIES: A WORKER
(REPRESENTED BY THE PUBLIC SERVICE EXECUTIVE UNION)
and
THE DEPARTMENT OF INDUSTRY AND COMMERCE
SUBJECT:
1. An appeal by the Public Service Executive Union (the Union),
on behalf of the worker, for the implementation of Equality
Officer's Recommendation No. EE3/1991 and an appeal by the
Department of Industry and Commerce (the Department) against
the Equality Officer's Recommendation. The worker alleged
that the Department in denying her access to promotion on 17th
April, 1989, discriminated against her on the grounds of her
sex and/or marital status within the meaning of Section 2 of
the Employment Equality Act, 1977 and in breach of Section 3
of that Act.
BACKGROUND:
2. 1. On 17th April, 1989, the Department selected a male
executive officer to fill an acting-up position of higher
executive officer. The worker claimed that she was more
senior in terms of service and was as qualified as or better
qualified than the male appointee. The worker alleged that
she had been less favourably treated because of her sex and/or
marital status.
2. In response, the Department stated that the worker had
not been denied access to promotion and that all officers
eligible for promotion are considered at a promotion
conference of Principal Officers which is held to decide
internal promotions. The policy of promotion within the
Department is based on merit with due regard to seniority.
The Department stated that the officer selected was, in the
opinion of the promotion conference, the best qualified for
promotion. The question of sex or marital status, was not
considered at the promotion conference. The worker was not
satisfied with the Department's response and through the
Union submitted the claim to the Labour Court. The Court
referred the case to an Equality Officer for investigation.
3. The Equality Officer's Recommendation is attached as
Appendix 1 to this determination.
4. The Union appealed the Equality Officer's Recommendation
on behalf of the worker on 4th March, 1991 (appendix 2) on the
following ground:-
"to have the recommendation of the Equality Officer
in the case of The Worker V the Department of
Industry and Commerce implemented."
5. The Department appealed the Equality Officer's
Recommendation to the Court on 22nd March, 1991. The grounds
of appeal are as stated in the Department's submission of 23rd
July, 1991 which is attached as appendix 3.
6. The Court heard the appeal on 8th August, 1991. The
submissions of the parties are attached as appendices 3 and 4
to this determination. The parties expanded orally on their
submissions at the hearing.
DETERMINATION:
3. 1. The premise adopted by the Equality Officer in her
examination of this case is that the abilities of female
executive officers are on average equal to the abilities of
male executive officers and this was not disputed by the
Department. It follows, therefore, in the absence of any
identified and valid reason, that the proportion of female
executive officers promoted should approximate to the
proportion of male executive officers promoted.
2. In the Court's view the period reviewed by the Equality
Officer was appropriate and, on the statistics used, disclosed
a disproportionately higher number of male executive officers
had been promoted. The Chi square test applied to the
statistics showed a less than 1% likelihood of the actual
outcome. In the absence of a coherent explanation from the
Department of the reason for such an outcome, the Court
considers that the Equality Officer was correct in concluding
that the lower proportion of female executive officers
promoted resulted from bias on grounds of sex.
3. The Department submitted to the Court that the
statistics presented by the Union and used by the Equality
Officer were defective in so far as they failed to take
account of a number of female officers who had clearly
indicated that they were not interested in promotion. But
even if the figures were revised to take full account of the
Department's claim in this regard, the Chi square test would
still show a 20% possibility of the actual outcome. The Court
considers that this result would not invalidate the conclusion
of the Equality Officer regarding bias.
4. The Department also submitted that the use of statistics
by the Equality Officer was an unacceptable means of
determining whether or not discrimination had occurred. The
Equality Officer did not use the statistics to determine
whether discrimination occurred in this case but used them to
establish the trend of promotions over a three year period.
On the basis of her findings the Equality Officer concluded
that discrimination on grounds of sex had occurred in this
period and that, therefore, the onus fell on the Department to
show that it had not occurred in this case. In these
circumstances the Court considers that the statistical
information was legitimately and correctly used by the
Equality Officer.
5. The essential question left to be determined by the
Court is whether the Department's decision not to promote the
claimant to the position of acting higher executive officer in
April, 1989 was or was not based on grounds of sex. The
burden of proof that it was not so based rests with the
Department.
6. The Department argued that, where merit is the criterion
for promotion, there must inevitably be subjectivity in coming
to a decision as to which officer is considered the most
suitable for promotion. While this reasoning is valid, the
Court considers that the degree of subjectivity could have
been minimised if all candidates were judged by the Department
against appropriate and known criteria rather than by random
views and recollections.
7. Having regard to the procedures adopted, the top-level
qualifications of both the claimant and the successful
candidate and the superior service of the claimant, the Court
does not consider that the Department has made a compelling
case that the selection was not discriminatory.
8. Accordingly the Court rejects the Department's appeal
and upholds the recommendation of the Equality Officer. The
Court further determines that the Equality Officer's
Recommendation in this case be implemented.
~
Signed on behalf of the Labour Court
Kevin Heffernan
-----------------
25th June, 1992. Chairman
J.F./U.S.