DEE015

FULL RECOMMENDATION AEE/00/14 DETERMINATIONNO.DEE015 SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : MINISTER FOR JUSTICE EQUALITY AND LAW REFORM (REPRESENTED BY ROISIN LACEY B.L. INSTRUCTED BY THE CHIEF STATE SOLICITOR) - AND - MS MAURA CLARKE, MS UNA KELLY & MS SADIE MCGOVERN (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION EMPLOYMENT EQUALITY AUTHORITY) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr O'Neill

SUBJECT:
1. Appeal by the Union on behalf of Ms Maura Clarke, Ms Una Kelly, and Ms Sadie McGovern Against Equality Officer's Recommendation EE20/2000 concerning an allegation that the Minister for Justice Equality and Law Reform discriminated against them on the basis of gender within the meaning of Section 2 (a) of the Employment Equality Act, 1977 ('the Act ') and in contravention of Section 3 of the Act when the Land Registry management failed to appoint them to promotional positions of Examiner-in Charge in the Land Registry.


BACKGROUND:

2. The claimants are employed as Examiners in the Land Registry of the Department of Justice Equality and Law Reform. On the 31st October, 1997 the Land Registry advertised an internal promotional competition from the Examiner grade to fill vacancies for the position of Examiner-in Charge. Examiners are employed in the Dealing and Copy Maps Sections of the Land Registry. The selection process was based on (a) seniority (b) supervisors' assessment and (c) a Consistory. Eight appointments were made as a result of the competition, seven male and one female. The Union claimed that no grounds other than the claimants' gender could explain the consistently low marks received by the female candidates in the competition. The Union referred a complaint to the Labour Court on the 8th July, 1998 under Section 19 of the Act. The Court referred the complaint to an Equality Officer for investigation and

recommendation. The Equality Officer in his recommendation which was issued on the 21st July, 2000, found that the Minister for Equality Justice and Law Reform did not discriminate against the claimants on the basis of their sex in terms of the provisions of Section 3 of the Act when he failed to appoint them to positions of Examiner-in Charge. On the 18th August, 2000 the Union, on behalf the claimants, appealed the Equality Officer's recommendation to the Labour Court. The appellants believe that the Equality Officer erred in law and in fact on the following grounds:-

1. Each, and every statistical analysis shows that the female candidates, including the appellants, fared less favourably than male candidates.

2. That a pattern of variation between comments and scores is apparent from an analysis of a number of assessment forms and that this variation is based on gender. 3. That the two explanations offered by the employers that (a) the results were an anomaly and (b) that the results were related to seniority/experience are not proven to be the case.

4. The burden of proof is on the employer to show that discrimination did not take place.

5. That, in the absence of objective justification for the marks, the comments and variations between male and female candidates, that the actions of the employer are deemed to be discriminatory.

The Labour Court heard the appeal on the 22nd February, 2001. Both parties made written submissions to the Court and expanded orally on their submissions at the hearing.


DETERMINATION:

This is a claim against the Minister for Justice, Equality and Law Reform on behalf of three named female employees, graded as examiners, that the action of the Employer constituted gender discrimination when, along with other female candidates, they were discriminated against on the basis of gender in relation to the filling of eight posts of examiner in charge (promotional outlets).

The points for consideration in this appeal are as follows:

1. Do the statistics furnished indicate that there is a consistent imbalance between the marks awarded to females and those to males in the competition for selection?

2. If the statistics furnished indicate that such an imbalance exists, are they sufficiently reliable for the appellants to establish a prima facie case of discrimination and thus switch the onus of proof from the appellant to the respondent?

3. Once the onus of proof is switched, can the respondents prove on the balance of probabilities that discrimination did not occur?

4. If discrimination did occur, can the respondents objectively justify same, using the tests set out inBilka-Kaufhaus GMBG-v-WEBBER von Hertz(C170-84)?
Scoring system

Selection for promotion was traditionally on the basis of seniority and suitability. The promotions advertised on the 31st October, 1997 arose from an Agreed Report No: 03/1997 of the Department Council under the Civil Service Conciliation and Arbitration Scheme under PCW Agreement. This report provided that these advancements would be filled in accordance with the agreement between Management in the Land Registry and IMPACT Union.

It was agreed that a proportion of the advancements to the higher grades would be filled by way of competitive selection; with input from and agreement with IMPACT, the selection criteria were determined.

The selection process was based on:-

Seniority: 10% of the marks
Supervisor's assessment: 60% of the marks
Consistory: 30% of the marks

The Union submitted a table of figures to the Court outlining the placing of all 39 candidates for the positions. This table gave details of:-

• The final placing of each candidate ranked 1 to 39.
• The section each candidate worked in - whether Maps or Dealings.
• The date of appointment of each candidate.
• A date for the purposes of establishing seniority for each candidate.
• A seniority placing for each candidate.
• The salary of each candidate.
• The markings for each candidate, showing marks by seniority, supervisor's assessment, consistory marks and total marks.

The respondents accepted this table as a factual account of the outcome of the selection process.

The Equality Officer analysed the supervisor's assessment marks to examine the respondent's contention that experience and seniority should be reflected in these marks and to examine the Union's contention that females received consistently lower assessment marks.

He examined the average marks awarded to male and female candidates for different levels of seniority. The results showed that while assessment marks generally improved with seniority, the marks awarded to female candidates were consistently lower in each of the seniority bands and that the average marks for the most senior females compared with the average marks for the most junior males.

The maximum 10 marks were awarded to applicants with over five years service, and all but six of the applicants scored 10 marks for service. Therefore, the markings awarded for service were not a major factor in the decision marking process.

The Court notes that 69% of males and 31% of females applied for the promotions, 87.5% of the successful applicants were male and 12.5% were female (7 males and 1 female). Coincidentally, the number of males and females who applied for the promotions is exactly in line with the % breakdown of the males and females employed in the Sections.

The evidence relied upon by the applicants is that the statistics show that the system disadvantaged women. The Court is being asked to address whether the evidence adduced supports the proposition contended by the Union.

Pattern of Marks.

Marks for female candidates were consistently lower in each of the seniority bands used by the Equality Officer.

Average marks for the most senior females i.e. Band D (12.75 - 17 years):
Assessment 43% total 73%

Average marks for the most senior males i.e. Band D (12.75 - 17 years):
Assessment 46% total 78%

Average marks for the most junior females i.e. Band (0 -4.25 years):
Assessment 35% total 55%

Average marks for the most junior males i.e. Band (0 - 4.25 years):
Assessment 43% total 68%

On the basis of the information contained in the table supplied, the Court has established that females scored average marks of 69.73% whereas, males scored average marks of 76.90%, a difference of 7.17%.

When an examination of the marks given by supervisors is carried out it shows that one (3.7%) of the male candidates received marks lower than seven, in any one assessment category, whereas, 6 (50%) of the female candidates received such marks.
Although the group is relatively small, the numbers applying reflect the proportion of each gender in the overall group of Examiners employed, therefore with eight posts to fill, the result of 7 successful males and 1 successful female has given rise to an allegation of unlawful discrimination.

Onus of Proof

An issue for consideration by the Court is where does the onus of proof lie in this case. The Union submits that there is prima facie evidence to suggest the existence of a structural problem within the Land Registry. The Union states that each and every statistical analysis shows that female candidates, including the appellants, fared less favourably than male candidates. Therefore, it is submitted by the Union, that once a prima facie case is established the burden of proof falls on the respondent to show that discrimination did not take place.

This principle is now incorporated in Council Directive 97/80 EC of 15th December, 1997 on the Burden of Proof in Cases of Discrimination Based on Sex which sets out the procedural rules to be followed in applying the evidential burden in discrimination cases.

While this directive is not yet transposed into Irish Law, the case law of the ECJ has already established the principle. As the respondent is an emanation of the State, the directive has direct effect (Van Duyn and Home Office (1979) and Marshall v Southampton South West Hampshire Health Authority (1986)

In this case, the facts are such that the assessment markings for male and female candidates indicate that females fared consistently worse than male candidates. However, the numbers are so small as to possibly distort anyconclusions. In the light of the small number it is necessary to examine the statistics to ascertain whether any valid conclusions can be drawn, which would serve to shift the burden of proof on to the respondent.

Findings

The Court has considered the case law established by the European Court of Justice to assist in this task. The core issue in this case, is the issue of the gender imbalance amongst those selected for promotion.

The European Court of Justice in C-127/92Enderby v Frenchay Health Authority and Secretary of State forHealth (1993) E.C.R. 673considered that the degree of gender imbalance in both the claimant and the comparator grade must be particularly marked before a prima facie case of discrimination can arise, " it is for the national court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short term phenomena, and whether, in general, they appear to be significant".

Advocate General Jacobs inJulia Schnorbus v Land Hessendelivered on 6th July, 2000 "if one were to take the course of examining the overall statistics.... it would be unwise to base any conclusion simply on the gross figures for" one specific date in time, " the national courts would have to investigate the situation further before it could reach a sound conclusion".

If the discrimination is as alleged, one would expect to find a higher percentage of men being promoted over the previous number of years. The Court does not have such information. The system devised for the promotions in 1997 was different to all previous selection procedures, which were solely based on seniority and suitability. Therefore the Court is of the view that there is little relevance in seeking information for previous promotions.

Before a case of prima facie discrimination can be established, appellants must have adduced reliable evidence leading to a conclusion that there has been a breach of the principle of equal treatment. Precedent exists to show that reliable statistics have been accepted to establish a prima facie case of discrimination.

Based on the above case law the Court is not satisfied that the statistics can be relied upon, as they are too small. There clearly is an imbalance when one compares the marks scored for men and women. However, the Court is not satisfied that this is other than "a purely fortuitous or short term phenomena".

In C-167/97R v Secretary of State, ex parte Seymour Smith and Laura Perez "the national court seeks to ascertain the legal test for establishing whether a measure adopted by a Member State has disparate effect between men and women to such a degree as to amount to indirect discrimination for the purpose of Article 119". The ECJ held that "it is for the national court, taking into account all the material legal and factual circumstances, to determine..........

"the national court must verify whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfil the required imposed by that measure. If that is the case, there is indirect discrimination, unless that measure is justified by objective factors unrelated to any discrimination based on sex".



In this case, the sample is based on 8 successful employees, seven of who were men and one of whom was a woman. Based on the principles enshrined in the above mentioned case law, the Court is of the view, that as the statistics are based on such a small, once-off sample, that the statistics are not reliable. Therefore the Court cannot conclude, on the basis of the statistics furnished, that the appellants have adduced sufficient evidence for the onus of proof in this case to switch to the respondent.

In a bigger sample, such an imbalance could lead the Court to conclude that a case of indirect discrimination had occurred. However, in this case as the sample is so small and the successful candidacy of one more female would have had a significant impact on the overall statistical evidence, the Court accepts the contention of the respondents. The Court is of the view that the statistics did not carry sufficient weight to justify a finding of indirect discrimination.

The decision of the House of Lords in theSeymour- Smithcase concludes that an imbalance, though small but continuous, over a period of time, could lead to a conclusion of discrimination. No evidence has been adduced to conclude that there is a pattern over a period of time which shows that females consistently fared worse than males in the selection process for promotions.

In conclusion, the questions posed may be answered as follows:-

1. The statistics do show an imbalance between the markings score byfemales and bymales.
2. The statistics are not sufficiently reliable to establish a prima facie case of discrimination and therefore the appellants' claim must fail.
3&4. Since the answer to question 2 is in the negative there is no need for the Court to consider questions three and four.













Determination

Having considered all the evidence before it, the Court upholds the Equality Officer's findings that the Minister for Justice, Equality and Law Reform did not discriminate against Ms Maura Clarke, Ms Una Kelly and Ms Sadie McGovern in terms of Section 2 (a) of the Employment Equality Act, 1977 and in contravention of Section 3 of that Act when the Land Registry management failed to appoint them to promotional positions of Examiner-in-Charge in the Land Registry.



Signed on behalf of the Labour Court



Caroline Jenkinson
3rd May, 2001______________________
TOD/CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.