FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : DUBLIN INSTITUTE OF TECHNOLOGY (REPRESENTED BY TOM MALLON B.L., INSTRUCTED BY ARTHUR COX, SOLICITORS) - AND - A WORKER (REPRESENTED BY THE IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr Rorke |
1. Appeal by the Union against Equality Officer's Recommendation EE4/99 concerning an allegation that Dublin Institute of Technology discriminated against the worker, contrary to the provisions of Section 3 of the Employment Equality Act, 1977 in terms of Section 2 of the Act.
BACKGROUND:
2. The background of this case is set out in the Equality Officer's Recommendation (details with the Court). The Equality Officer in his recommendation, which was issued on the 25th of February, 1999, found that the Dublin Institute of Technology did not discriminate against the worker contrary to the provisions of the Employment Equality Act, 1977.
The Union appealed the recommendation to the Labour Court on the 31st of March, 1999 on the following grounds:-
(a) The Equality Officer's Recommendation was based on
an error of fact concerning the experience of the appointee,
in particular, his level of seniority in his prior post.
(b) The level and extent of the experience and responsibilities
of the appointee were therefore misrepresented.
(c) The Recommendation was unduly influenced by the
comparison of salaries between the appointee and the
claimant who were employed in two different organisations.
(d) No reference was made in the Recommendation to the use
of the word "stature" in the advertisement which the
respondents placed for recruitment to the post. The claimant
objected to this at the hearing.
The Court heard the appeal on the 20th of July, 1999. Both parties expanded orally on their submissions at the hearing.
DETERMINATION:
The claimant in this case appeals the finding of the Equality Officer on the following grounds:-
1. When making his recommendation, he made an error of fact concerning the experience of the appointee in particular the level of the appointee's seniority in a particular post.
2. The level and extent of the appointee's experience and abilities were misrepresented.
3. The Equality Officer was unduly influenced by the difference in salary between the claimant and the appointee.
4. The use of the word stature in the advertisement for the position indicated a bias towards males.
In essence the claimant's case is that her qualifications, experience and responsibilities exceeded those of the appointee and therefore her failure to obtain the position can only have been due to discrimination on the grounds of her sex within the meaning of Section 2(a) of the Employment Equality Act, 1977 (the Act) and in contravention of Section 3 of the Act.
THE POSITION
The Head of Library Services, as the advertisement for the post indicated, is a Senior Management Position requiring a person of stature, strength of character and communication skills with the ability to provide strong leadership, to present complex issues clearly and to command authority in an organisation of high calibre personnel.
Certain minimum criteria were set down for the position. Seventeen candidates, nine women and eight men applied. Of these, four candidates, two women and two men, among them the claimant and the appointee, met the minimum criteria for the position and were called for interview.
THE INTERVIEW
The claimant did not furnish any evidence of discrimination on the part of the Board during her interview. She was of the opinion that she was not given the opportunity to expand on her experience and responsibilities in certain areas. She stated she was upset at the conduct of the interview.
It is not the responsibility of the Equality Officer or this Court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the sex or marital status of the complainant or the appointee influenced the decision of the Board.
In assisting the Court to reach a decision as to whether or not there was discrimination, the notes and records of an interview board are of considerable assistance. The Board's failure to either take or keep copies of notes and records of its procedures and markings at interview in breach of its own guidelines is a matter of regret. The keeping of such records, particularly in relation to a position for which such intangibles as strength of character, communication skills and the ability to command authority are required is important.
This lack of transparency is a source of concern to the Court and the Court strongly recommends that in future the Board keeps a record of its procedures and markings at interviews available for inspection.
In the absence of any evidence of discrimination at the interview, and in the absence of records the Court must assess whether or not the responsibility, experience and qualifications of the claimant outweigh those of the appointee to such an extent that a prima facie case of discrimination is made out and the onus then falls on the respondent to justify the appointment.
QUALIFICATIONS
The applicant argues that she had better qualifications than the appointee. However, at the hearing the Institute indicated that the appointee had an M.A. In terms of qualifications therefore the Court does not find significant differences between the parties.
EXPERIENCE AND RESPONSIBILITIES
The claimant's main argument in relation to responsibility and experience was that in fact the appointee was in the fourth most senior grade at Dublin University instead of the second most senior grade. She stated that her grade at the Dublin Institute of Technology carried a greater level of responsibility. She also claimed that the Equality Officer erred in giving full responsibility for a budget of £750,000 to the appointee when in fact he had shared responsibility for the budget. She claimed her sole responsibility for a budget of £300,000 was greater. Again she claimed that because the applicant had shared responsibility for 16 staff he
had less responsibility in staffing terms than she who had sole responsibility for 6 staff. The claimant also stated that the Equality Officer had given too much significance to the fact that at the time the appointee earned 50% more than the claimant.
CONCLUSION
In the absence of other criteria which would have been available if the interview records had been kept, the Court has carefully examined the respective qualifications, experience, and responsibility of the claimant and appointee. The Court is satisfied that there are not sufficient differences between them in terms of qualifications, experience and responsibility to justify a prima facie finding of discrimination. The Court is aided in this conclusion by the decision of the interview board to offer the position to one candidate only - the appointee - and not to recommend any of the other candidates for appointment.
The Court accepts the Institute's contention that the word stature was meant to connote reputation and was not a reference to physical size. The Court holds that the claimant was not discriminated against under Section 2(a) of the Act and in contravention of Section 3 of the Act.
DETERMINATION
The recommendation of the Equality Officer is upheld and the appeal is disallowed.
Signed on behalf of the Labour Court
Finbarr Flood
2nd November, 1999______________________
L.W./D.T.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.