FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : DAUGHTERS OF CHARITY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MARTHA MCGINN (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr. Somers |
1. Appeal against Decision of the Office of Director of Equality Investigations (ODEI) Dec-E2002-054.
BACKGROUND:
2. The background to this case is set out in Equality Officer's Decision DEC-E2002-054 which was issued in December, 2002. The Equality Officer decided that the respondent discriminated against the complainant on the grounds of gender in terms of Section 6 (2) (a) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that act when it did not appoint her to the position of Nursing Practice Development Co-ordinator and the successful applicant was male. The Equality Officer ordered the respondent to implement fair and transparent selection procedures in future competitive competitions for employment and promotions. The Equality Officer also ordered the respondent to pay the complainant compensation in the form of arrears of remuneration in the gross amount of €60,000 and compensation for the effects of the act of discrimination in the amount of €10,000.
On the 30th January, 2003 the respondent appealed the Equality Officer's Decision to the Labour Court on the following grounds:
"(1) The Equality Officer erred in law and in fact when she concluded that the Organisation had discriminated against the complainant in terms of Section 6 (2) (a) of the Employment Equality Act, 1998 when the complainant was not appointed to the position of Nursing Practice Development Co-ordinator.
(2) without prejudice to (1) above, the compensation awarded is excessive
(3) any other grounds which arise in the course of this appeal".
The Court heard the appeal on the 8th July, 2003.
DETERMINATION:
Background
Ms Martha McGinn (the complainant) is a registered nurse for the mentally handicapped (RNMH). At all times material to this case she was employed by the Daughters of Charity of St Vincent de Paul (the respondent). On or about August 2001 the post of Nurse Practice Development Co-ordinator with the respondent became temporarily vacant. The complainant was one of two applicants for the post. The other applicant was a male RMNH employed by the respondent. In the subsequent competition the male candidate was successful. The complainant alleged that she was discriminated against in the filling of this post on grounds of her gender in terms of section 6(2)(a) of the Employment Equality Act 1998 (the Act) and contrary to section 8 of the Act. The complainant further alleges that she was victimised in terms of section 74 of the Act when she sought to pursue her grievance at not being appointed to the disputed post. The respondent denies all of the complainant’s claims.
The complainant’s Union, the Irish Nurses Organisation, presented a complaint to the Director of Equality Investigations which was investigated by an Equality Officer. The Equality Officer found that the complainant had been discriminated against by the respondent in not appointing her to the disputed post but found that she had not been victimised as alleged. Pursuant to section 82 of the Act the Equality Officer ordered the following redress:
1 That the respondent implement fair and transparent selection procedures in future competitive competitions for employment and promotions:2 That the respondent pay the complainant compensation in the form of arrears of remuneration in the gross amount of €60,000.
3 That the respondent pay the complainant the sum of €10,000 for the stress suffered as a result of the discrimination.
The respondent appealed to this Court against the Equality Officer’s finding of discrimination and without prejudice thereto appealed on the grounds that the award of compensation was excessive.
The complainant’s case.
In essence it is the complainant’s case that the respondent contrived to bring about a situation in which a less qualified male would be appointed to the disputed post in preference to her. In support of her claim the complainant contends as follows:-
(i) She is better qualified academically than the successful male candidate in that she holds an honours primary degree and had commenced to study for a Masters degree. The successful candidate did not hold a degree at the material time.
(iii) The marking at interview did not reflect the complainant’s superior qualifications and experience.
(iv) The successful candidate was advised by a member of management to apply for the post and that this person was subsequently a member of the interview board for the post.
(v) The post was advertised internally despite earlier indications that it would be advertised in the public press.
(vi) The interview was unsatisfactory in that the complainant was not asked any questions of relevance to her CV. She further contended that she was asked questions which did not admit of any direct answer. The complainant further contended that in contrast to the uncomfortable atmosphere in which her interview was conducted she witnessed the successful candidate being escorted from the interview room by the Chairperson in circumstances of cordiality
(vii) The complainant contends that following the outcome of the interview she sought to discuss her dissatisfaction with the process with a member of management but was threatened as to the consequence for her of pursuing her grievance as an equality issue.
(viii) The interview board did not keep notes of the interview.
It is the complainant’s contention that these facts, taken in combination, establish a prima facie case of discrimination and that the onus is thus on the respondent to rebut the presumption that the principle of equal treatment has been infringed. The union relies on the European Communities (Burden of Proof in gender discrimination cases) Regulations 2001(S.I. No. 337 of 2001) in support of this proposition. They further rely upon the dicta of Lord Lowry LCJ inWallace v South Eastern Education and Library Board [1980] ILRM 193to the effect that where discrimination is established and the successful candidate is male and the more qualified unsuccessful candidate is female, this is in itself evidence of gender discrimination. They also point out that the decision in that case was adopted by this Court inThe Mater Misericordiae Hospital v Dr Noreen Gleeson (DEE 003).
Respondent's Case.
The respondent contends that the successful male candidate was selected on the basis of his performance at interview. They told the Court that in the view of the selection board, whose responsibility it was to assess the candidates, the successful candidate was the most suitable and they deny that the gender of the candidates in any way influenced the outcome of the competition. The respondent further submitted as follows:
(i) The post of Nurse Practice Development Co-ordinator has a senior nursing management role and is graded as assistant director of nursing. The primary function of the post is to develop and oversee the implementation of nursing practice in all service locations of the respondent in the service area of the Eastern Regional Health Authority.
(iii) The Person Profile which listed five years experience as an essential requirement for the post was designed some years previously and was not relevant to the disputed competition.
(iv) The advertisement for the post did not specify a requirement for 5 years experience as a RNMH. It merely provided that such experience was desirable. Moreover, the reference in the person profile to five years experience (to which the Union referred) relates to experience as a registered nurse and not to registration in the field of mental handicap. The successful candidate had more than five years experience as a registered nurse.
(v) The successful candidate held a dual qualification in that he is a Registered Psychiatric Nurse (RPN) as well as holding a RNMH qualification. This dual qualification is considered particularly relevant in delivering care to clients of the respondent with intellectual disability and mental health needs.
(vi) Although dual qualified nurses are highly desirable they are quite rare. Hence, a stipulation in the advertisement that dual qualification was required or desirable would result in fewer applicants given the small number of nurses who possess dual qualifications.
(vii) Whilst the complainant holds a primary degree (B.Sc. in Professional Social Work) this is a professional social work qualification rather than a recognised nursing qualification. The successful candidate was undertaking a degree in nursing studies at the material time and this course of study was regarded as relevant to nursing practice.
(viii) The successful candidate was assessed as having good leadership, good negotiation and good management skills. The complainant was assessed as needing to focus more on goals, and as having no clear example of management skills.
(ix) The respondent has an excellent record with regard to equality of opportunities. At the time of the interview there were 117.5 nursing management positions with the respondent of which 102 .5 were held by women. By contrast only 15 such posts were held by men.
(x) The respondent denies that the complainant was threatened in the manner alleged or at all. It is further denied that the respondent sought in any way to encourage the successful candidate to apply for the disputed post.
The respondent contends that the selection process was fair and transparent and that the best candidate was appointed. In reference to the findings under appeal the respondent submitted that the Equality Officer confused a perceived unfairness in the selection process (which they denied) with discrimination. On that point they referred to the decision of this Court inPauline Mulcahy and Waterford Leader Partnership (EEO 1/00)issued on 20th April 2000, wherein it was held that unfairness on the part of an employer is not in itself evidence of discrimination.
In reference to the quantum of the award made by the Equality Officer, the respondent pointed out that the actual loss suffered by the complainant in consequence of not being appointed to the disputed post was €2,239 per annum. Thus, they say, the award made by the Equality Officer equates to 26 years loss in current pay terms. The complainant in fact resigned her position on 31st august 2002.
Conclusions of the Court
Burden of Proof.
The Court must first consider if the evidence has disclosed a prima facie case of discrimination so as to shift the probative burden on to the respondent in terms of the European Communities (Burden of Proof in gender discrimination cases) Regulations 2001(S.I. No. 337 of 2001). The test normally used by the Court in determining the threshold for shifting the burden of proof is that formulated inMitchell v Southern Health Board [2001] ELR 201. This test places the evidential burden on the complainant to establish the primary facts on which her complaint of discrimination is grounded. If those facts are established and if they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the respondent must then prove, on the balance of probabilities, that the principle of equal treatment has not been infringed.
The complainant relied upon her version of the factual background surrounding the competition, which is set out earlier in this determination, in contending that the onus of proof is on the respondent. The respondent, in reliance on the decision inMulcahy and Waterford Leader Partnership, contend that at worst the facts alleged by the complainant may support an inference of unfairness (which is denied) but not of discrimination.
The decision inMulcahyrelated to a claim by the complainant that she was dismissed on grounds of pregnancy. At the time of the dismissal the complainant had given birth and was returning to work following her maternity leave. She was dismissed allegedly for misconduct which had come to light during her maternity leave. Whilst the Court was satisfied that the circumstances surrounding the decision to dismiss the complainant rendered it unfair it was unable to hold that the unfair treatment related to her pregnancy. The decision of the Court was subsequently appealed to the High Court and was upheld in a judgment delivered by O’Sullivan J which is now reported at [2002] ELR 12.
It must be borne in mind that this case was determined before the Burden of Proof Directive was transposed into law by S.I. No. 337 of 2001. The case law from which the Directive was derived was not opened to the Court in that case nor was it referred to in the determination of the Court.
In his judgement upholding the determination O’Sullivan J took the view that it was a matter for this Court to draw or refuse to draw an inference of discrimination from any findings of primary fact. The Judge stated the position thus:
- “More centrally, in the paragraph under review the Court is rejecting the invitation to draw an inference having considered all the material including the oral evidence and the cross-examination. That is precisely the discretionary quasi judicial function with which the Labour Court (and no one else) is charged to carry out. The fact that one may disagree with the conclusion, or strongly disagree with it, is - in law - neither here nor there. It is the Labour Court and no one else which is charged under our law with carrying out this quasi judicial function and it is only if their conclusion is so abhorrent to logic and common sense or involves an error of law that the High Court will interfere with it. Clearly the Court was within its jurisdiction to accept the written and oral assurance of the employer in preference to the written and oral assurance of the employee and I cannot accept that in so doing they are in breach of legal principle or have offended logic and common sense to the point where this Court should interfere.”
The Court does not, therefore, accept thatMulcahyis authority for the proposition that a finding of unfairness can never be an acceptable basis on which to shift the burden of proof on to the respondent in accordance with S.I No. 337 of 2001. It is a matter of degree and it is for this Court to decide in every case if the factual basis disclosed on the evidence is sufficient to raise an inference of discrimination. Where, as in the present case, there is unfairness in a selection process which disadvantages a woman candidate and operates to the advantage of a man, an inference of discrimination on the gender ground will properly follow.
Findings of Fact.
Having reviewed the evidence as a whole the case for and against a prima facie finding of discrimination is finely balanced.
In the respondent’s favour there is no evidence of any bias against the appointment of women to management posts. In fact the evidence clearly points to the opposite conclusion. Further, the interview board was made up of three women and this would normally be regarded as having the potential to confer an advantage on a woman candidate. There was no suggestion that the questions asked of the complainant at interview inferred any discriminatory disposition on the part of any member of the interview board.
The complainant alleged that the successful male candidate was approached by a member of management and encouraged to apply for the dispute post. This allegation was, apparently, based on hearsay and it was emphatically rejected by the member of management, to whom it was attributed, in her sworn evidence. In the circumstances the Court has no hesitation in rejecting this allegation. Further, it is clear that the complainant did have a discussion with this member of management in relation to the requirements of the post, whereas the successful candidate did not have any such prior discussions with her.
The Court has, however, identified a number of anomalies in the procedures and decisions adopted by the respondent in relation to the competition. The document headed Person Profile / Selection Criteria sets out the qualifications, core competencies and other factors required for the disputed post. Under the heading of qualifications it lists as essential a RNMH and five years experience. The successful candidate did not have five years experience as an RNMH.
The Court was told that this document was prepared for the previous filling of the post and that on this occasion it was decided to regard this criterion as merely desirable. It was further stated on behalf of the respondent that the reference in the Person Profile to 5 years experience referred to experience as a registered nurse (which the successful candidate had) and not specifically to registration in the field of mental handicap.
Whatever the intention was when the Person profile was produced it is clear from the advertisement for the post that the intention at the time of the competition was that five years post- registration in the field of mental handicap would be desirable. The complainant met this qualification. The successful candidate did not. Yet both candidates were awarded equal marks for qualification.
The respondent contends that the successful candidate’s dual qualification was a factor which was decisive in his favour. Nowhere in any of the documents furnished to the Court in relation to the filling of the post is a dual qualification mentioned as being either desirable or an advantage.
In relation to the respective educational qualification of the candidates, the Court fully accepts that in the filling of posts having a management role, personal skills and attributes are often more important than academic achievement. However, in the present case a significant emphasis has been placed on academic achievement as a desirable quality for the post. The draft job description for the post issued by the Department of Health and Children provides that candidates should ideally be educated to Masters Degree level. The Person Profile, previously referred to, similarly provides that a Masters degree is desirable. In that context it is strange that the job advertisement did not specify any educational qualification. It is stranger still that the interview board seemed to attach at least equal weight to the fact that the successful candidate had commenced a degree course in nursing studies with the fact that the complainant held an honours degree and had commenced the process which could lead to a Masters degree.
The Court also finds that the manner in which the interviews were conducted is somewhat disturbing. There were no notes taken of the interviews. The individual members did not mark candidates. It appears that at the end of the process there was a discussion between the members of the board and an overall marking was agreed under each of the headings identified on the candidate assessment form. The comments were then added but there is no documentary evidence as to the basis for those comments. It is further noted that whilst the complainant obtained 56 marks out of a possible 80, she was designated as not suitable for the post rather than being listed as the reserve candidate.
The Court is satisfied that taking these facts in combination, and applying the dicta of Lord Lowry LCJ inWallace v South Eastern Education and Library Board [1980] ILRM 193,which was adopted by this Court in Dr Gleeson’s case, they are of sufficient significance to raise a presumption of discrimination within the meaning of S.I. No. 337 of 2001. Accordingly the onus of proving that the principle of equal treatment was not infringed in this case rests on the respondent.
Conclusion.
The Court has carefully evaluated all of the evidence adduced and the written and oral submissions made to it in the course of the hearing in determining if the probative burden on the respondent has been discharged. As already observed there are many aspects of the case which point away from a conclusion of discrimination. However, on the balance of probabilities, the Court does not accept that these factors go far enough to outweigh those aspects of the case which indicate that the complainant was treated less favourably than the successful male candidate. In particular, the Court finds that the absence of any contemporaneous notes of the interview and the manner in which the marking credited to candidates was arrived at, makes it difficult for the respondent to rebut the presumption of unlawful discrimination which arises by operation of law. Accordingly the Court upholds the Equality Officer’s finding of discrimination.
Claim of Victimisation.
The Court has considered the evidence adduced by the complainant in support of her allegation of victimisation and the rebutting evidence on behalf of the respondent. On balance the Court does not regard this complaint as having been made out.
Redress.
The Equality Officer awarded compensation in the amount of €60,000 in respect of arrears of remuneration and €10,000 in respect of stress arising from the acts of discrimination found to have occurred. The Equality Officer did not give any indication in her decision as to the basis on which this award was calculated. For reasons that follow the Court is of the view that it is excessive.
Section 82(1)(c) of the Act allows for the making of an order for compensation for the effects of acts of discrimination
The maximum amount which may be ordered by the Court by way of compensation in this case is an amount equal to 104 times either:
(a) the amount of the remuneration received by the complainant on the date of reference of the case or on the date of dismissal where it is earlier or
The appellant alleges that one of the main effects of the Act of discrimination was to the place her under such anxiety and stress that she was unable to work for a period of two years prior to resigning her post in August 2002.
The employer contends that the actual loss to the appellant was approximately €2,239 per annum, that is to say, the difference in salary between her then current position and the salary attaching to the disputed position.
The complainant relied on medical reports obtained by the respondent in support of her claim that the acts of discrimination complained of resulted in her developing a debilitating stress related illness. Having examined these reports, the Court finds that the complainant’s contention that her illness is linked with the failure of the respondent to appoint her to the disputed post is not made out and that a causal connection between the discrimination and the said illness has not been proved. Having so found it is unnecessary to consider whether the Court can, appropriately, take account of what amounts to personal injuries suffered as a result of a discriminatory decision, in deciding the quantum of compensation for the effects of discrimination pursuant to section 82(1) of the Act.
The Court has also been asked to take into account the fact that the Appellant subsequently resigned her position in August 2002 and suffered further loss in consequence.
In appropriate circumstances, the Court might regard a resignation following a discriminatory act as amounting to a constructive dismissal and thus be regarded as part of the effects of the discrimination. However, in this particular case the Court, having evaluated all the evidence, has come to the conclusion that the complainant's resignation in August 2002 and any subsequent financial loss could not be regarded as an effect of the discriminatory act so as to attract an award of compensation under section 82(1) of the Act.
There are other effects of a discriminatory decision, such as in this case the loss of status incurred by the complainant, and in most cases the feelings of humiliation and distress occasioned by the discriminatory act. There is also the undoubted expense and inconvenience incurred in bringing a claim under the Act. Further, inInoue v NBK Designs Ltd [2003] ELR 2 98this Court, in line with the decision of the ECJ inVon Colson & Kamann v Land Nordrhein- Westfalen [1984] ECR 1891,held that the redress ordered must be effective proportionate and dissuasive. In the view of the Court all of these factors, which are not intended to be exhaustive, may where appropriate be taken into account in measuring the level of compensation which is fair and equitable having regard to all the circumstances of the particular case.
In the circumstances of this case, having found that the stress related illness suffered by the complainant and her subsequent resignation cannot be regarded as forming part of the effects of the discriminatory act, the Court can only reach the conclusion that the sum awarded by the Equality Officer is disproportionate and excessive
Having regard to all the circumstances of the case the Court considers that a total monetary award in the amount of €25,000 is appropriate in this case and the Equality Officer’s decision is amended accordingly.
With this amendment the decision of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
12th August 2003______________________
TODDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.