FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : THE ROTUNDA HOSPITAL (REPRESENTED BY A & L GOODBODY, SOLICITORS) THE MATER MISERICORDIAE HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DR NOREEN GLEESON (REPRESENTED BY O'MARA GERAGHTY MC COURT, SOLICITORS, ON BEHALF OF THE EQUALITY AUTHORITY) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr Rorke |
1. Appeal against Equality Officer's Recommendation EE9/99.
BACKGROUND:
2. The full background to the case is contained in the Equality Officer's recommendation No. EE9/99. The claimant was one of 5 candidates - 3 female and 2 male - who were interviewed for the position of a consultant obstetrician/gynaecologist, which post is shared between the 2 respondent Hospitals. The interview took place on the 17th of January, 1996. One of the two male candidates was successful, and was appointed to the job.
The claimant's core allegation is that she was discriminated against on the grounds of sex in relation to the appointment. She maintains that she was more suitable than the successful male candidate given her qualifications, experience and publications, all of which, she claims, are superior to the successful male candidate.
The claimant referred her case to an Equality Officer for investigation and recommendation. The Equality Officer found that the respondent Hospitals did not discriminate against the claimant contrary to the provision of the Employment Equality Act, 1977.
On the 30th of July, 1998, the claimant appealed the Equality Officer's Recommendation to the Labour Court on the following grounds:
1. The Equality Officer erred in law and in fact in finding that the Respondents and each of them did not discriminate against the Claimant/Appellant contrary to the provisions of the Employment Equality Act, 1997.
2. The Equality Officer erred in law and in fact in not awarding an appropriate remedy to the Claimant/Appellant for the discrimination experienced by her and the consequent distress to her.
3. On all grounds submitted during the Equality Officer's investigation and such grounds as may arise during the course of this Appeal.
The Court heard the appeal on the 24th of January, 2000. The following is the Court's determination:
DETERMINATION:
Comprehensive written and oral submissions were made by the parties.
The appellant’s case is that she was discriminated against by the respondents on the grounds of her sex within the meaning of Section 2(a) of the Act, and in contravention of Section 3 of the Act because, as a result of her sex, she was not appointed to the post of Consultant Obstetrician/Gynaecologist.
The grounds of appeal advanced on behalf of the appellant are as follows:
-She was more suitable than the successful male candidate for the position.
-She was better qualified, more experienced and had more publications than the successful candidate.
-The successful candidate was allowed to re-submit his Curriculum Vitae after the closing date, indicating a determination by the respondents that he would get the post.
-Certain questions and comments made at the interview were discriminatory and would not have been made to a male candidate.
- The interview board consisted of eight males and one female interviewer. - There is an ethos within the medical profession whereby male consultants are appointed to hospital posts, and that in particular in the area of obstetrics and gynaecology, less than 5% of the consultants are women.
The respondents, while accepting that the claimant was more experienced and better published than the successful candidate, argued that the qualifications of both candidates were similar.
The respondents argued that all candidates were given the opportunity to add to their Curriculum Vitae at interview, and that one other person did in fact submit additional material. In the case of the successful candidate, he was allowed update his C.V. because he had applied for the post while in Canada, and changes had taken place since his application.
The respondents claim that a remark in relation to the years when “she had her babies†made to the appellant, was a genuine compliment to an outstanding professional and personal achievement.
In relation to questions on working in the Sexual Assault Treatment Unit,the respondents stated that they regard the Unit as one of its core services, and argue that it is perfectly legitimate to ask the applicant questions in relation to their availability to work in one of its core services. The respondents were of the opinion that the claimant regarded the Unit and its Directors with some contempt.
On the composition of the interview panel, the respondents stated that the people selected were viewed as the most suitable for the task.
The respondents rebutted the allegation of a male ethos, citing their progressive service provisions for women.
The Court notes the respondents’ acceptance that no specific criteria were agreed for the post, prior to the interviews, and that notes written by the Board in the course of the interviews were not available to the Equality Officer or the Court.
The Court finds it extraordinary, given the complicationof the respondents' separate requirements for the post, that no prior discussion took place to agree the criteria.
The Court concurs with the Equality Officer's comment in relation to transparency. The lack of any notes, the failure to agree the criteria prior to interview, and the lack of any transparency in relation to the selection procedure, are matters of concern. The Court would strongly recommend this situation be corrected for future interviews.
There appears to be a difference of opinion as to how important a sub-speciality interest in gynaecological oncology was in deciding the appointment, the respondents arguing that it was not a deciding factor. However, a letter of the 6th of September, 1996, written by the Secretary to the interview panel, would appear to indicate it was a significant factor. Equally, there was disagreement between the respondents on the weighting to be given to the actual interviews.
Both respondents gave detailed oral evidence in addition to their submissions at the hearing, and the Court has also taken that oral evidence into account in arriving at its decision.
The first question the Court has to decide is whether the appellant has established a prima facie case of discrimination. The Court, in deciding this, issue considered the following points:
1. The Court has carefully examined the Curriculum Vitae of the appellant and the successful applicant. The Court finds as a fact that, taken as a whole, the appellant’s qualifications and experience were greater than those of the successful candidate.
2. It is accepted by the respondents that the successful candidate was allowed to submit his amended Curriculum Vitae after the closing date for submission of applications.
3. The appellant queries the constitution of the interview board, eight males and one female. The composition of such a board does make a case for a prima facie finding of discrimination.
4. One of the interviewers stated that the appellant’s major career development appeared to have occurred during the years when she had her babies. This remark, whether intended as complimentary or not, clearly identifies the appellant by reason of her sex, and could give rise to a prima facie finding of discrimination.
5. The appellant states that one of the interview board made the comment “that's fine, sink the sisters†when she indicated she would not be interested in doing voluntary work in the Sexual Assault Treatment Unit of the first named respondents. Such a comment, identifying the appellant by reason of her sex, could give rise to a prima facie finding of discrimination, particularly as the question was not put to the male applicants.
6. In relation to the appellants’ contention that there is a male dominated ethos in Irish Hospitals, and that this is evidenced by a letter written by one of the consultants to the first named respondent, in 1990, insufficient evidence has been adduced by the appellant in support of this contention. The letter was written some six years prior to the events complained of, and it is the view of the Court that it could not be used to ground a claim of discrimination in the present case. On this ground, therefore, the appellant has not made out a sufficient case to justify a prima facie evidence of discrimination.
This Court accepts, however, that on grounds 1 to 5 above, the applicant has made out a prima facie case of discrimination and, accordingly, following the decision in Wallace-V-South Eastern Education and Library Board, the onus then falls on the respondents to justify their decision.
The Court is not satisfied that the respondents have filled this requirement. When challenged to explain to the Court the justification for the appointment, the main justification was that he was a “high flier†who had passed quickly through the various medical posts he held. It was also claimed that he was the “most suitable of the applicants and that he had the greater potential". However, no satisfactory supporting arguments were made to substantiate this position.
Labour Court Findings
The Court, having examined both the original C.V. submitted by the successful candidate and the updated version, is of the view that more than just an updating was involved. In some instances, there is a change of emphasis and presentation, and while this may be legitimate, it raises the question as to why it was allowed.
In relation to the interview, no specific criteria were formally agreed by the board prior to interview. By letter, however, dated the 9th day of December, 1996, written by the Chief Executive of the second named respondents to the Employment Equality Agency, the agency was informed that the successful candidate was chosen specifically as the person most likely to build and lead a team with a special interest in gynaecological oncology.
On the other hand, the first named respondents stated that their preference was for a candidate who would (a) be a future master and (b) have an interest in amniocentesis.
As already stated, the Court finds it extraordinary that, given that both respondents apparently had separate priorities for the post, no discussion took place to agree any criteria for the post.
The first named respondent states that its preferred candidate for the post was a woman and, therefore, it did not discriminate on the grounds of sex. The Court does not accept this argument nor the argument that, because the second choice was a woman, there can be no discrimination on the grounds of sex.
The first named respondents advance the case that some of the other candidates had academic qualifications equal if not superior to those of the appellant and, therefore, the appellant was not discriminated against on the grounds of her sex. The Court cannot accept this contention. It can only judge the appellant vis-�-vis the successful candidate.
In relation to the comments made at interview, both respondents concede that the comments were made but say that the reference to the appellant's babies was complimentary, and that the reference to "sink the sisters" was borne out of exasperation. However, due to the failure to keep any records, the respondents can provide no objective evidence to justify this.
Finally, both respondents, and particularly the first named respondent, argued strenuously that they have developed socially progressive services which are of great benefit to women generally and that, therefore, their entire social ethos is neither male nor chauvinistic.
The Court accepts that both respondents, in their treatment of patients, act in a most enlightened and socially progressive manner. This need not, however, apply in relation to their recruitment, and selection procedures which, on the evidence before the Court, were sadly lacking in transparency.
Conclusion
Based on the information before it, the Court is satisfied that the respondents have failed to rebut the appellant's claim of discrimination. The appellant was better qualified, more experienced and better published than the successful applicant. The respondents confirmed at the hearing that there was no issue of performance, interpersonal skills or other shortcomings identified in the appellant.
Taking into account the absence of any prior clarification on the criteria to be used by the interview panel, the lack of any transparency in the selection process, the fact that the claimant was more qualified and experienced than the successful applicant, the other matters referred to in this determination, and in the absence of sufficient evidence to rebut the appellant's submissions, the Court finds that the applicant was discriminated against, under Section 2(a) of the Act and Section 3 of the Act.
Before proceeding to the assessment of damages, the Court has one further point to consider. It is advanced by the first named respondents that, since they were in the minority on the Interview Board, and since the successful applicant was not their candidate, their preference being the second placed candidate, a female, they should not be held liable. The Court cannot accept this contention. All the members of the interview board signed the document recommending the successful applicant for the post and it is, therefore, the view of the Court that both respondents are jointly liable to pay the appellant the compensation which the Court proposes to award.
Compensation
The Court may under Section 22 of the Employment Equality Act, 1977 award such amount as the Court thinks reasonable having regard to all the circumstances of the case but the compensation shall not in any case exceed 104 weeks' remuneration at the rates the person concerned would have received but for the discrimination.
"Remuneration" as defined in the Anti-Discrimination Pay Act, 1974, which may be read together with the Employment Equality Act, 1977,
"includes any consideration, whether in cash or in kind which an employee receives directly or indirectly in respect of his employment from his employer."
The Court, having carefully considered all aspects of the submissions made by the parties, proposes to award the appellant the sum of �50,000 compensation, in full settlement of this case.
Determination
The appeal is allowed. The recommendation of the Equality Officer is overturned. The Court finds that the appellant has been discriminated against under Section 2(a) of the Act and in contravention of Section 3 of the Act and awards the appellant the sum of �50,000 compensation against the respondents jointly.
Signed on behalf of the Labour Court
Finbarr Flood
18th April, 2000.______________________
CON/CCChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.
 Determination.doc | ATTYUTO2 | ATTNGES7 |