FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : DEPARTMENT OF ARTS, HERITAGE & GAELTACHT - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Dispute concerning a claim by Ms Irene Mac Avin (the complainant) that D�chas the Department of Arts Heritage, Gaeltacht and the Islands (the respondent) discriminated against her 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 she was placed sixth on a panel for the position of Park Ranger, Phoenix Park.
BACKGROUND:
2. The complainant commenced her employment with the respondent in July, 1996. She was employed as a Constable in St Stephen's Green and in Iveagh Gardens. In November, 1998 the respondent advertised a number of vacancies for the higher paid position of Park Ranger, Phoenix Park. The complainant applied for one of the positions, which were to be filled by internal competition. Following interviews the complainant was informed that she had been placed sixth on a panel of successful candidates. She was also informed that the panel would remain open for a period of 12 months.
- The five candidates ahead of the complainant were all male. The first three candidates were appointed to the position of Park Ranger, Phoenix Park in May, 1999. In due course the complainant was appointed to a similar post in May, 2000 (after the present proceedings had commenced).
- The complainant claimed that she was placed sixth on the panel because she is a woman and that this constituted unlawful discrimination. The dispute was investigated by an
As a result of this finding the Equality Officer found that the complainant should have been placed 5th rather than 6th on the panel. He recommended that she be appointed to the position with effect from the same date as the 5th candidate and paid arrears of salary accordingly. The Equality Officer further recommended that the complainant be paid compensation in the amount of £500 for the inconvenience and distress which she suffered in bringing the complaint.
The respondent appealed to the Court against the finding of discrimination. The complainant cross appealed against the adequacy of the remedy recommended.
Findings of the Court
Having carefully evaluated the evidence proffered by the parties and the submissions made at the hearing of this appeal, the Court has reached the following findings:
The complainant presented an incomplete CV with her application for the post and in consequence the interview board did not know the full extent of her qualifications and experience. The Court does not accept that the interview board's failure to consult the complainant's personnel file, which contained a complete CV, can be construed as evidence of discrimination.
the date of his application or at the time of his appointment to the panel. He did, however, hold
such a licence at the time of his appointment to the disputed post. The Court accepts that the
requirement to hold a full driving licence was a condition precedent to appointment to the post
and not to placement on the panel. On this account, the Court rejects the complainant's argument
that candidate B was not qualified for inclusion on the panel. While the relevant document was not produced in evidence, it was accepted by the respondent that the interview notes of one member of the interview panel recorded, in relation to candidate B “his previous experience working as a security officer is evident and would be of advantage to our working environment”. Candidate B had never worked as a security officer. The member of the interview panel who made this entry was not called to give evidence. However,
in its submission to the Court the respondent claimed that the reference to work as a security
officer related to the candidate B’s work as a Park Constable in St. Stephen's Green which, they
said, involves security related duties. As appears from the report of the Equality Officer, Candidate B had ten months experience working as a Constable in St. Stephen's Green. The complainant has two years identical experience. If candidate B’s ten months experience working in St. Stephen's Green was regarded as a significant accomplishment warranting special mention in the interview notes, there is no rational reason as to why the complainant's two years experience was not similarly regarded. It is also noted that while the candidate placed 1st on the panel had six years experience as a Constable in St. Stephen's Green, the candidates placed 3rd 4th and 5th, ahead of the complainant, had no such experience.
The fact that candidate B was given credit for his experience of security duties while working in St Stephen's Green whereas the complainant was not, is a fact from which discrimination may be inferred and does establish a prima facie case of unlawful discrimination.
The complainant also contended that the failure of the respondent to specify in the advertisement
for the post that it was open to both men and women is evidence of a discriminatory disposition
on the part of the respondent. Further, the complainant contended that the appointment of an all
male interview board to conduct the competition points to a similar conclusion.
It is common case that the post of Park Ranger is one which has historically been dominated by
men. In the competition giving rise to this dispute eleven candidates applied for the post of which
nine were men and two were women. The complainant was the only woman appointed to the
panel. In the Court's view, where a vacancy for a job, which has traditionally been regarded as gender specific, is being filled, it is highly desirable to specify that applications are welcome from members of both sexes. Failure to do so may constitute evidence which supports a prima facie finding of discrimination. Further, as was pointed out by this Court in Dr Tereasa Mitchell v Southern Health Board, (DEE011) 15thFebruary 2001, a practice of constituting interview boards entirely of members of one sex is potentially discriminatory and can form part of the evidential chain on which a claim of discrimination could be made out.
In the present case, both of these factors, taken in combination with the discriminatory treatment of the complainant relative to candidate B, add support to the Court's conclusion that a prima facie case of unlawful discrimination has been made out.
Burden of Proof.
It is now settled law that where a complainant establishes a prima facie case of unlawful discrimination, the onus shifts to the respondent to establish, on the balance of probabilities, that no infringement of the principle of equal treatment occurred. Whilst that principle is established in the case-law of the European Court of Justice, it is now formalised in Article 4 of Directive 97/80/EC of 15th December 1997 on the Burden of Proof in Cases of Discrimination Based on Sex. This Directive has not yet been transposed into Irish law, despite the implementation date (1st January 2001) having passed. Nonetheless, it is clear since the Judgement of the ECJ in Van Duyn v The Home Office [1974] ECR 219 and later in Pubblico Ministero v Tullio Ratti [1979] ECR 1629, that a non-implemented Directive can have vertical direct effect in proceedings in which the State or an emanation of the State is the respondent.
In the present case the Court is satisfied that complainant has made out a prima facie case and consequently the respondent carries the evidential burden of rebutting the presumption of discrimination.
The Respondent's Defence
The responded contended that since the complainant was appointed to the panel and ultimately to the post for which she competed, she could make no sustainable complaint of discrimination. The Court cannot accept this submission. What the complainant alleges is that by being placed sixth on the panel she was appointed to the post some 12 months after the three highest placed candidates. If the claimant was ranked sixth on the panel, rather than amongst the first three, because she is a woman, this would, in the circumstances, obviously amount to unlawful discrimination in relation to access to employment.
The only direct evidence adduced in relation to the interview and selection process was that given by the chairperson of the interview panel. He told the Court that the members of the interview panel simply allocated marks, under three pre determined headings, to each of the candidates at the end of their interview. When all of the interviews were completed the marked sheets were given to the chairperson. The panel members did not discuss the merits of the various candidates and the chairmen of the panel could offer no explanation as to the basis on which particular candidates were allotted the marks which they received. Moreover, the interview notes taken by one of the panel were not available to the respondent and there is no record of how this panel member assessed the candidates under the various headings.
When specifically asked why candidate B was preferred over the complainant the chairperson of the interview panel was unable to offer any reason beyond pointing to the higher marks scored by candidate B at interview.
Conclusion.
Having found that the onus of proving that the complainant did not suffer discrimination rests on the respondent, the Court must go on to consider if that evidential burden has been discharged. Taking the evidence as a whole, the Court is satisfied that the respondent has not discharged that burden. Accordingly, the complainant is entitled to succeed and the Court must find that the respondent discriminated against her in contravention of Section 2(a) of the Act.
Remedy.
SIPTU have urged the Court to find that the complainant should be placed second on the panel, in place of candidate B. They further submitted that she should be deemed to have been appointed to the post at issue from the date candidate B was appointed and paid appropriate arrears of salary.
The respondent's own submission, in relation to the note of candidate B’s interview, suggests that at least one of the two members of the interview panel whose notes were available, attached considerable significance to prior experience in working as a Park Constable and to the security duties attaching to that post. The representative of the respondent also acknowledged, in response to a question from the Court, that experience of security duties would be a decided advantage in competing for the post at issue.
Only three candidates had such experience. The candidate placed first had six years experience, the candidate placed second (candidate B) had ten months experience, and the complainant has two years experience. As noted earlier, no explanation was proffered as to why candidate B was preferred over the complainant.
Further, as was made clear by the ECJ in Draehmpaelh v Urania Immobilienservice ohG [1997] ECR 1-2195, it is for the employer, who has possession of all the applications submitted, to adduce proof that the complainant would not have obtained the vacant position even if there had been no discrimination. No such proof was adduced before the Court.
For these reasons the Court accepts that the complainant should be appointed to the post of Park Ranger Phoenix Park with effect from 10th May 1999, the date on which candidate B was appointed and paid the appropriate arrears of salary.
It has further been submitted by SIPTU, that the award of £500 made to the complainant in respect of distress and inconvenience in bringing this case is inadequate.
There is a substantial body of authority to support the proposition that the form of sanction imposed for unlawful discrimination must not only provide adequate compensation for the victim but must also have a deterrent effect. In Von Colson & Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, the ECJ pointed out although the full implementation of the Equal Treatment Directive does not require any specific form of sanction for unlawful discrimination, it does entail that the sanction be such as to guarantee real and effective judicial protection. Moreover, the Court said, it must also have a real deterrent effect on the employer. The Court went on to point out that where a Member State chooses to penalise discrimination by an award of compensation, that compensation must in any event be adequate in relation to the damage sustained. The rationale expressed in Von Colson, has been restated by the ECJ in a line of subsequent cases.
It would appear from this case law that if an award of compensation is the only remedy available or granted to a successful claimant, an amount of the magnitude recommended by the Equality Officer might not be sufficient to meet the requirements of effectiveness, particularly in relation to its deterrent effect. However, in the present case the primary remedy which the Court proposes is a recommendation that the complainant be appointed to the post at issues with effect from a date 12 months earlier that that on which she was in fact appointed, with appropriate arrears of salary. In these circumstances the additional award of compensation in the amount of £500 for inconvenience and distress suffered by the complainant in bringing this case is adequate and is upheld.
DETERMINATION:
The Court holds that the Respondent did discriminate against the complainant on the basis of her sex, and in contravention of the provisions of Section 3 of the Act when it placed her sixth on the panel to fill vacancies for the post of Park Ranger, Phoenix Park and in consequence thereof, in not appointing her to one of the vacant posts on 10thMay, 1999.
Pursuant to Section 22(b) of the Act, it is recommended that the complainant's appointment to the post of Park Ranger, Phoenix Park, be deemed to have taken effect on 10thMay, 1999, and that she be paid such arrears of wages as would have accrued to her had she been appointed on that date.
Pursuant to Section 22 (c) of the Act, the claimant is awarded compensation in the amount of £500. 00 (634.87Euros) in respect of inconvenience and distress suffered by her in the taking of this claim.
The appeal by D�chas is disallowed. The cross appeal by the complainant is allowed to the extent that the recommendation at 2 above is substituted for the Equality Officer’s recommendation that the complainant be appointed to the position with effect from the same date as the 5thplaced candidate and be paid arrears of salary accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
16th May, 2001______________________
FB/CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fran Brennan, Court Secretary.