FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : NATIONAL MUSEUM OF IRELAND THE DEPARTMENT OF ARTS, HERITAGE, THE GAELTACHT AND ISLANDS AND THE ATTORNEY GENERAL (REPRESENTED BY CHIEF STATE SOLICITORS OFFICE) - AND - DR ANNE O' DOWD (REPRESENTED BY FAWSITT & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal Against Equality Officer's Recommendation Dec - E - 2001/14
BACKGROUND:
2. The Labour Court investigated the above matter on the 22nd May, 2002, 8th November, 2002 and on the 13th December, 2002. The Court's decision is as follows:-
DETERMINATION:
This is an appeal by the complainant against the recommendation of the Equality Officer DEC-E2001/014 in which the Equality Officer found that the respondents did not discriminate against the complainant in terms of Section 2(a) or (c) of the Employment Equality Act, 1977 when the respondents did not appoint the complainant to the position of Manager/Keeper of the Irish Folklife Division of the National Museum of Ireland in June 1999.
The Court heard the case on three dates, 22nd May, 8th October and 13th December 2002. Additional information was requested from the National Museum and was received by the Court on 27th January 2003. A response to this information was received by the Court from Counsel for the complainant on 20th February 2003.
Background
The dispute concerns a confined competition held by the Civil Service Commissioners in April 1999 for a position based in Castlebar,as Manager/Keeper of the Irish Folklife Division of the National Museum of Ireland. The complainant was ranked second in the competition. She claims that she was discriminated against on the grounds of her sex in terms of section 3(1) of the Employment Equality Act, 1977 and in terms of the Equal Treatment Directive 76/207/EEC.
The respondents made a submission to the Court without prejudice to its contention that it was not a proper party to the proceedings, as it had not exercised any discretion in the selection or appointment to the disputed post. It was argued that Section 12(3) of the 1977 Act precluded an investigation of the substance of the complaint. The respondents reserved their position as to whether the decision of the Labour Court inMitchell v Southern Health Board DEE2/1999was correctly decided.
The complainant claims that she was discriminated against on the grounds of gender in the manner in which she was treated by the respondents as follows:
- She was discriminated against in the manner in which the complainant’s interview for the position of Manager/Keeper of the Irish Folklife Division of the National Museum (hereinafter referred to as Manager/Keeper) was conducted.
- She was discriminated against by the failure of the respondents to appoint her to the position of Manager/Keeper; she had worked in an acting capacity at Assistant Keeper I (AKI) level since in and around 1986 and was the most suitably qualified and experienced candidate;
3. She was discriminated against by the respondents’ appointment of a less suitably qualified and experienced male candidate instead of the complainant.
In his decision, the Equality Officer concluded that there was no evidence to suggest that the two male candidates were treated more favourably at interview than the complainant and that although her knowledge experience and qualifications were superior to those of the appointee, the respondents had demonstrated that the non-appointment was objectively justified on grounds other than sex. The Equality Officer was satisfied with the respondents' arguments that certain aspects of the complainants work performance, unconnected with her gender, give rise to concerns about her suitability for the Manager/Keeper position in Castlebar and that the outcome of the interview process was consistent with the viewpoint expressed in a memo which was sent by the Director of the National Museum to the Personnel Department during the selection process.
The Equality Officer was satisfied that on balance the respondent had discharged its burden of proof in relation to the complainant's ranking at interview and found that neither respondent had discriminated against Dr O'Dowd. It is against this decision of the Equality Officer that the complainant appealed to the Court.
The complainant's case
In essence, the complainant’s case is as follows:
1.The role of women in the National Museum
There is a bias against women when persons are selected for promotion within the Museum. This is evidenced by the fact that through the use of qualifications and criteria for positions, there is a clear bias towards appointing men to senior management positions in the National Museum. The complainant alleges that at the time of the interview in April 1999 there were eight males and two females in senior positions in the Museum. The job specifications and the necessary qualifications for the positions of Keeper to the Irish Antiquities Division and the Natural History Division during the 1990’s is given as an example of this bias, which it is alleged, were designed to ensure that the senior curators of these Divisions, both males, could apply. It is also alleged that a number of female senior curators were not appointed to positions as AK1
2.The conduct of the Interview process
The complainant alleges that there was a clear bias against her at the interview, that she was treated in an intimidating manner, and that she felt she was put on the defensive by the questioning of her by the Director of the National Museum.
3.Evidence of less favourable treatment
The complainant states that Section C of the application form for the position as Manager/Keeper requires the candidate’s superior to give a view as to their suitability for the position. The complainant alleges that shortly prior to the interview, her superior the Director of the National Museum wrote a memo to the Personnel Department in which he commended Dr. O’ Dowd for her qualifications, background, education and her input into the development of the Folklife museum but also expressed considerable reservations about her ability to get on with others, including himself as Director over the previous seven years. He stated that he had reservations about her capacity for the human resources and human relationship demands of the position. He stated that it had not been her practice to attend management meetings or to keep him and others senior colleagues informed of her area of responsibility despite continued attempts to have her do so. The Director of the National Museum was on the interview board. The existence of the memo was not made known to the complainant until she began to process her claim. The Complainant alleges that the contents of this memo are groundless, spurious, grossly untrue and inaccurate. In such circumstances the complainant holds that the memo shows a bias against her on the grounds of her gender.
It is the complainant’s contention that the service criteria for the position were changed between the original advertisement and the date of the interview. It is claimed that the successful appointee would not have qualified under the original criteria. The criteria were allegedly changed from AK1 with three years service or at least seven years service at AK1 and AK2 combined or seven years service at AK2; to, either three years service at AK1 or four years at AK2.
The complainant maintains that in 1998 the position for the development and management of the Turlough Park Project in Castlebar was advertised at the level of AK1 (and not as Keeper), she maintains that this was a downgrade. It is contended that Dr.O’Dowd was the most senior and “only eligible candidate” and therefore would have been appointed in that position and that this confirms her assertion of discrimination.
The complainant alleges that her greater experience and qualifications in the Folklife Division clearly demonstrate she was more suitable for the job and that the only possible inference that can be drawn from the appointment of the male candidate was that she was discriminated against on the grounds of her sex.
The respondents’ case
The respondents suggest that the complainant on her own evidence has not proven as a fact the assertion on which her complaint of discrimination is based. They contend that the complainant makes no case of discrimination on the grounds of sex.
The respondents citedGleeson v Rotunda Hospital DEE3/2000andMitchell v Southern Health Board DEE1/2001in relation to the discharge of the evidential burden of proof. They refer to the fact that inGleesonthe complainant had made out a primia facie case of discrimination and required the respondents to justify their decision, which they failed to do. In this case the respondents submit that the facts are different. Unlike theMitchelland theGleesoncases, in this case the criteria used by the interview board were clear, there was no lack of transparency in the selection process, there was no overt favouring of the successful candidate, there were no remarks or comments that identified the complainant by reason of her sex.
The creation of the post of Manager/Keeper arose due to a government decision allowing the creation of 13 new posts at the National Museum facility at Castlebar. The respondents stated that the appointment at Manager/Keeper level was required in view of the special managerial functions that would be needed to manage a new separate museum facility. Consequently, the person who would fill the position of Manager/Keeper was required to have a significant administrative role involving management and general administration of the entire operation as well as being curatorial head of the Folklife Division which differs from the position of Keepers of other divisions located in Dublin, who would have the support of the administration and managerial structure already in place.
The respondents accept that the complainant has superior qualification but dispute that she has superior relevant knowledge and experience.
With regard to the allegation that the National Museum has a preponderance of males occupying senior positions, the respondents submit that Counsel for the complainant has not proffered any “practice” which leans significantly more heavily on females than on males, thereby giving rise to a claim of “indirect” discrimination. In this regard the respondents cite the Equality Officer’s finding that “the presence of a higher number of males than females in senior positions is not in itself evidence of a discriminatory practice”.
The respondents maintain that the competition was carried out in accordance with the normal procedures of the Civil Service and Local Appointments Commission. There were three people on the Selection Board. The Department nominated the most senior officer of the National Museum as its representative. The Commission selected the other board members, Mr. Marshall McKee of the Ulster Museum and Ms. Mary Kelly, Assistant Principal, Office of the Civil Service and Local Appointments Commissioners; all were independent of the first and second named respondents.
It is contended that the interview process was entirely normal, that the board agreed the format of the interview in advance, that the same questions were asked of all candidates, and that each candidate was questioned with the same degree of intensity, rigour and impartiality.
The respondents outlined the reason why the job specification did not require AK1 experience, i.e. promotion from one grade to the next higher grade, as would be the norm for promotional positions in the Department. The reason given was that due to the specialisation and the experience required for thisparticular position, it was thought that there would not be a sufficient number of AK1 officers with the relevant service (3 years). Consequently the Department opened up the competition to thoseat AK2 level.The Burden of ProofFor an allegation of discrimination to be upheld under the Employment Equality Act, 1977, the complainant must show prima facie evidence of discrimination. Once a primia facie case is established the burden of proof falls on the respondents to show that discrimination did not take place.
This principle is enshrined in the case law of the European Court of Justice which was given statutory authority in Council Directive 97/80 EC 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 and is transposed into Irish Law by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001.
Article 3(1) of the Regulations, which transposed Article 4 of the Council Directive 97/80/EC, provides as follows:
“3(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary”
In Southern Health Board v Mitchell AEE/99/8 the Court considered the application of Article 4 of the Directive and concluded as follows:
“[A] complainant must prove, on the balance of probabilities, the primary factors on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”The Court must therefore look at the allegations above to see whether the complainant has established each of them as a fact.
The Court notes that at the time of the selection process for the Manager/Keeper grade, the senior posts in the Museum were filled by the following:
- one male Director,
- three males Keepers, one female Keeper
- three males at AK1 and two females at AK1 grade
- six males at AK2 and six females at AK2 grade
The Court does not consider that these figures indicate a disproportionate balance giving rise to an inference of gender discrimination and is of the view that the statistics are not of sufficient evidential value to ground a prima-facie case of discrimination.
It is also alleged that a number of senior female curators were not appointed to positions as Assistant Keepers 1. The Court notes that in fact no females applied for these positions during the relevant period.
The figures show that during the period in 1989 - 1999;
(a) two females and two males were promoted to Assistant Keeper 2 level
(b) one female and three males were promoted to Assistant Keeper 1 level
(c) one female and three males were promoted to Keeper level
Of the employees eligible to apply for the post as Manager/Keeper in Castlebar - 5 were females and 6 were male.
The Court has also examined the criteria for the positions and did not find any evidence of gender bias in those criteria.
The Court therefore does not accept the complainant’s allegation that the preponderance of males in the senior positions within the National Museum shows evidence of gender bias.
Having examined the documentation, the Court is of the view that the allegation that the Museum has traditionally favoured males for promotion, did not promote females, and designed criteria to ensure that only senior Curators (Males) could apply, is not sustainable.
2. The conduct of the interview processIn relation to the second allegation of the complainant, that the atmosphere at the interview was intimidating and hostile, the Court heard evidence on this point from Mr. McKee, of the Ulster Museum who was on the interview board and from the complainant herself.Mr. McKee, whose evidence the Court fully accepts, stated that the tone of the interview with the complainant was no different than those of the other two candidates. He gave evidence that the interview process was entirely normal, that the board agreed the format of the interviews in advance, that the same questions were asked of all candidates, and that each candidate was questioned with the same degree of intensity, rigour, and impartiality. He stated that he did not feel that the interview was in any way intimidating or hostile. In her own evidence, the complainant confirmed that at the time, she was happy with the way the interview had gone and that she had no complaints. It was not until the results of the interview became known that the allegations of intimidation and hostility were made. Since both Mr. McKee’s and the complainants own evidence confirmed that at the time they were both satisfied with the conduct of the interview, the Court cannot accept the complainant’s contention in this regard.
3. Evidence of less favourable treatmentThe third allegation is that by preparing a memo outlining his reservations about her suitability for the position and by then going on the interview board, the Director of the National Museum effectively ensured that she was not going to get the position.
The complainant however must establish a fact from which an inference of gender bias can be drawn. The Director of the National Museum gave evidence. He stated that he had considerable reservations about the complainant’s ability for the position and that he felt he had no alternative but to communicate those reservations to the Personnel Department. The Court has examined the memo and cannot see any evidence of gender bias in it. The Court has also seen the requirements for the position contained in the Job Specification Information Form. Considered as essential for the position was a proven ability to manage and work as part of a team. The essential Special Personal Attributes required for performing the duties attached to the position were an ability to work under pressure and meet deadlines, have a flexible and adaptable approach to problems solving, have excellent verbal and written skills and confidence in dealing with the public.
The Director of the National Museum, Dr. Wallace, gave evidence that while he recognized that the complainant had qualifications and experience working in the Folklife Division in excess of those of the successful candidate, he considered that for this particular position the ability to manage and work as part of a team and the special personal attributes set out in the Job Specification Information Form were essential. Mr. McKee of the Ulster Museum stated that while he was aware that the Dr. Wallace had written a memo containing reservations about the complainant’s suitability for the position, he had not seen the memo prior to the interview. He stated he had not been put under any pressure by the Director to select any one candidate above any other.
Evidence was also given that in 1996 a meeting had been held with the complainant to talk about her non-attendance at management meetings and other difficulties but that the meeting had proved unproductive.
Evidence was given by a number of witnesses to the effect that Dr O'Dowd was regarded as acting up Keeper who had overall responsibility for the Folklife Division. They stated that Dr O'Dowd was very professional, highly motivated and set high standards for herself and her staff. These witnesses found Dr O'Dowd to be very understanding, supportive and referred to her ability to share her knowledge and were of the view that there was a very good working relationship between her and the other staff and the Division. Evidence was given of her work on the preparation of the new museum at Castlebar and on the upgrading of the museum facilities in Daingean. The Court fully accepts these witnesses evidence and accepts that Dr O'Dowd was fully qualified for this position.
The Court has carefully considered the complainant’s allegation - that by his actions Dr. Wallaceeffectively ensured that she was not going to get the position.The Court does find that the complainant has shown that the Director had considerable reservations about certain aspects of her ability to perform the duties necessary for the position. The complainant has not shown however any fact from which an inference of bias on the grounds of gender could be made. In the Court's view, the comments written were those of a superior about a subordinate and were gender neutral.
4. Changes in service criteria and status of position advertised
The Court was informed that the change was made between the Department of Arts, Heritage and the Gaeltacht and the Civil Service Commission and that such changes were not unusual.
The Court notes that the successful appointee was promoted to AK2 level from 22nd October 1991 therefore the Court accepts that the change in the service criteria did not advantage him or disadvantage Dr. O’Dowd.
The Court therefore, is of the view that on the first four grounds the complainant has not established facts from which an inference of discrimination may be made.
5. The complainant’s superior qualifications, experience, knowledge, suitability and
abilityThe final allegation on which the complainant sought to rely was that she had better experience and qualifications than the successful male candidate. The Court must assess whether or not her experience and qualifications outweigh those of the successful appointee to such an extent that a prima facie case of discrimination is made out.
It is accepted by the respondents that she had superior qualifications but not superior relevant knowledge and experience. The Court notes that this is reflected in the marking at the interview. The complainant scored in excess of the successful candidate in terms of qualifications and knowledge of value but in terms of experience of value and suitability he scored higher than she did.
The fact that Dr.O’Dowd was more qualified and had a wider range of experience working in the Museum than the appointee, is in the view of the Court in this particular case, on its own sufficient to raise an inference of discrimination. Therefore, the onus is on the respondents to demonstrate that there was no discrimination on the grounds of sex.
Having carefully assessed the evidence, the Court is satisfied that the respondents established in advance the objective criteria to apply for the assessment of the candidates and that in terms of this newly created position of Manager/Keeper of a new museum facility in Castlebar that there were other considerations besides academic qualifications.
The Court has analysed the criteria used by the interview board and is satisfied that they were objective and gender neutral and that the interview was conducted in a non-discriminatory manner. The Court accepts that the interview board had credible, non-discriminatory reasons for not selecting the complainant. The Court is satisfied that the interview board’s assessment of Dr O’Dowd’s qualifications, knowledge of value, experience of value and suitability were assessed in an objective manner indicating that she scored higher in the first two and lower in the second two. The Court accepts that the respondents were correct in relying on this assessment.
The Court notes that it was the policy of the Civil Service and Local Appointments Commission at the time, that the notes and records of the interview board would be destroyed and that only the markings would be retained. Only the comments of the chairman of the board were retained. This failure to retain notes and records of the other interviewers is a matter of concern as the keeping of notes and records are of great assistance to the Court when investigating allegations such as the complainant's. The Court has commented on this practice of destroying interview notes in the past and expects that if it has not already ceased, it will cease in the future.
However, the Court accepts that the competition was conducted fairly and that the results reflected the objective assessment of the candidates by the interview board. No evidence of any discriminatory policy on the part of the respondents can be inferred from the facts of the case.
The Court therefore concludes that the decisions of the interview board were based on grounds other than sex and the Court is satisfied that the respondents have discharged the burden of proof on them.
There is no doubt that the complainant was a highly qualified candidate in terms of experience and qualifications within the Folklife division of the National Museum and would certainly have regarded herself as the leading candidate for the position. However, it is clear that other attributes were considered equally important and the successful candidate scored more highly than the complainant when the board assessed those attributes.
It is not the responsibility of this Court to decide who was the most meritorious candidate for a position. The function of the Court is to determine whether the gender of the complainant influenced the decision of the interview board.
In view of the fact that the Court has found against the complainant, it is not necessary for the Court to consider the points made by the respondents under Section 12(3) of the 1977 Act.
Determination
The complainant's appeal is dismissed and the decision of the Equality Officer is upheld.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th April, 2003______________________
JB/Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.