FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : DEPARTMENT OF ENVIRONMENT AND LOCAL GOVERNMENT - AND - KEVIN KEARNEY DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against Equality Officer's Decision DEC-E-2003-012
BACKGROUND:
2. The background to this case is set out in the Equality Officer's Decision (details with the Court). The Equality Officer, in her Decision, which issued on the 20th March, 2003, found that the complainant was not discriminated against contrary to the terms of the Act.
The complainant appealed the Equality Officer's Decision. He alleges that no merit was given to his case by the Equality Officer.
DETERMINATION:
In 1998 the complainant applied for a position as a driver tester in the Department of the Environment and Local Government (the responsibility for the Driving Test Service is now a matter for the Department of Transport). Recruitment for this post was carried out by the Civil Service Commission on behalf of and with the assistance of the Department.
There were three stages to the selection process: -
1. Psychometric Test
2. A Practical Driving Test
3. A Competitive Interview (confined to those who had qualified at stages 1 and 2.
Following the first stage, the Commission placed a number of successful applicants on a panel. The Department offered permanent positions to people on the panel to fill existing vacancies, provided they were successful in completing stages 2 and 3. The panel exceeded the number of permanent vacancies.
In time as further additional vacancies arose for “contract driver testers” the Department decided to fill these new positions from those candidates on the panel who had not secured permanent positions. The complainant was invited to apply for such a position and from there on his application was for a temporary appointment.
Those candidates who had been successful at the 1st stage of the selection process (the psychometric test stage) but had not undertaken the practical driving test or the competitive interview were required to undergo such stages by the Department for these new positions as contract driver testers.
The complainant alleges that during the third stage – the interview, discrimination against him on racial grounds occurred.
The Equality Officer investigated under Section 6(1) of the Employment Equality Act, 1998, which provides that: -
- “For the purpose of this Act discrimination shall be taken to occur where, on any of the grounds in sub section 2 (in this Act referred to as “the discriminatory grounds”) one person is treated less favourably than another is, has been or would be treated.”
The Equality Officer applied the test as found by the Labour Court in Mitchell v Southern Health Board DEE011 wherein it was found that in order to succeed the complainant must first establish facts from which it may be perceived that the principle of equal treatment has not been applied. It is only if these primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.
The core issue at the Equality Officer’s investigation was the complainant’s allegation that he was treated in a hostile manner by the interview board in relation to his nationality (U.K. Citizen) and his previous employment in the R.A.F.
There was a conflict of evidence between the parties on this matter.
The Equality Officer having considered the evidence was satisfied that the claimant had failed to submit prima facie evidence of discrimination and on that basis found that the claim of discrimination on the grounds of race was not supported. The claimant appealed this decision of the Equality Officer.
The Complainant’s Grounds of Appeal:
1. “This is a perverse decision”2. “It accepts every excuse of the Department of the Environment and Local Government however implausible and some are downright illogical”.
3. “No merit was given to his case whatsoever contrary to the proceedings at the hearing when the respondents were unable to explain their decision making process; the only two rogue variables being his place of birth and his RAF service”.
Complainant's Case:
The complainant is alleging that he was discriminated against on the grounds of race in terms of Section 6 of the Employment Equality Act, 1998 (the Act) and in contravention of section 8.
He states that having passed a psychometric test and a subsequent driving test he was called for interview by the Department of the Environment and Local Government. He had thirty-four years' driving experience and had passed the advanced driving test twice. Three people, all male, interviewed him.
The complainant alleges that at the start of the interview attention was drawn to the fact that he was born in the United Kingdom. He felt compelled to explain the reasons for this and felt that he was expected to apologise for this. Shortly after this he further contends that the same interviewer stated, “you joined the Royal Air Force – what did that do for you?” He contends that this was “spat” at him. He states that he got the distinct impression that he was unwelcome and an outsider.
The complainant contends that there was only one reason for asking such a question and that was to draw attention to his place of birth and by so doing to highlight “my difference”. The Department responded to this allegation by affirming that two other “foreign nationals” were recruited, the complainant disputes this and questions whether these appointments were made before or after his complaint. At the Equality Officer’s hearing the complainant contended that these questions were unlawful, personal and not relevant to his ability to do the job. Following these incidents he was mortally wounded as a prospective candidate and no matter how good he was, his competence would never be good enough to surmount the alleged Anglophobic hurdle of the interviewers.
The complainant disputes the relevance of certain data on the application form, stating that the filtering of candidates of a particular nationality and indications of ethnicity should not take place. He alleges that the decision to reject his application was made in the first five minutes and that the rest of the interview was a search for evidence to support that decision.
The complainant states that following the alleged remarks he was questioned on the Rules of the Road and Mechanical Knowledge. He states that while he did not give a wrong answer to any question at interview he may not have given a comprehensive answer to two questions - he “did not answer two questions verbatim”. He stated to the Court that he hesitated at two questions and that “they knew that I would not be able to answer the remaining questions” and that prudence would have dictated that the interview should have ended at this point. He maintains that a number of the questions asked were peripheral and did not directly pertain to the position being interviewed for – assessing applicants’ competence to drive category B vehicles. He contends that no candidate could be expected to know all Rules of the Road and the fact that he had been driving for 37 years, accident free, on all types of vehicles implied that he knew the rules. His view was that the lesser-known rules would soon be learned on taking up the job and during training.
He also stated that he was subjected to unexpected general knowledge questions.
He also submits that as he has qualified as a Basic Psychologist that he had vastly superior qualifications than the successful candidates.
The complainant disputes the selection procedures utilised, stating that the interviewers did not have the professional skills to select the most suitable candidates, interview guidelines were not set out, the marking system did not stand up to scrutiny, assessment of interpersonal skills lacked credibility and there was a failure to retain interview notes.
The complainant contends that the interview board had no criteria for awarding marks.
The marks he achieved were as follows:
-Rules of the Road and Mechanical Experience 20 from 50
-Driving Experience 60 from 75
-Decision Making–Schedule Keeping 38 from 50
-Interpersonal Skills 52 from 100
-General Suitability 48 from 100
The complainant noted “with dismay” that the Equality Officer in dismissing his case, did not make any recommendations on such areas as the need for complete transparency on all future appointments. He also claims to have been the victim of the “Halo Effect” which he explains is the tendency to generalise a favourable or unfavourable impression to unrelated details of personality.
Respondent's Case
The complainant was one of those who were invited by the Department to undergo the final stages of the open competition for selection to the panel for the appointment of temporary contract driver testers. He was treated in exactly the same way as all other similar applications.
The job of a driver tester is to assess the competence of other drivers to drive various categories of vehicle – mainly cars (category B). It does not require a tester to have a driving skill beyond a basic level and neither does it require a tester to be able to give instruction – something, which the complainant appears to be under a misapprehension. As was the standard procedure, the complainant was required to pass a practical driving test before progressing to an interview stage. This test was carried out independently of any other stage of the procedure and entailed a pass/fail outcome only. Each candidate who passed was automatically referred on to the next (interview) stage. The respondent emphasised this point as they claim that undue emphasis was being placed by the complainant on his driving skills.
The respondent stated that the complainant's driving licence was only required at the practical driving test stage and the details therein relating to his place of birth had no relevance for the interview board.
The interview board agreed on the guidelines and control procedures beforehand to ensure uniformity of treatment and fairness for each candidate. The interview was carried out by three experienced people, (full details of their experience was supplied to the Court). It was chaired by a retired Assistant Secretary of the Department, the Chief Tester in the Driving Tester Section of the Department for the previous nine years and an Assistant Principal Officer in that section. The interviews of each candidate followed exactly the same procedure.
The chairperson used information on the application form as a basis for the initial questions, to put candidates at ease. This was followed by the two other members of the board asking questions drawn from their particular area of competence, using a menu of questions devised beforehand. The respondent absolutely rejects the complainant’s contention that the manner in which the two questions were asked was designed to upset and contends that the opposite was the case. The chairperson asked the questions as part of the initial “putting the candidates at their ease” and the question regarding his RAF experience was aimed at affording him an opportunity to demonstrate the value of the experience gained either in terms of technical experience or personal development. At the end of each interview the board reviewed the performance of the candidate and assigned marks under a range of headings, predetermined by the personnel section of the Department in consultation with members of management of the driving test service. These marks were awarded under the heading of: -
- Rules of the road and mechanical knowledge,
Driving experience,
Decision-making and schedule keeping,
Interpersonal skills
General suitability
The respondent stated to the Court that despite his extensive driving experience the complainant failed his theory test at the interview. They state that at the Equality Officer’s investigation he had indicated that he had not expected a knowledge-based interview. One of the essential requirements of the competition was “a satisfactory knowledge of the Rules of the Road”. Other candidates who displayed a similar lack of preparedness were also unsuccessful.
The respondent refutes the allegation that offers to other non-nationals may have been made after he made his complaint and supplied evidence to the Court confirming that the Personnel Officer wrote to all 23 interviewees on 8th August 2001 including non-nationals, informing them of the outcome of the competition. The respondent indicated that two other successful candidates were born in the UK and that of the 85 people called for the practical qualifying test 7 were born outside of the Republic of Ireland; of the 23 people who passed the test three were born outside of the Republic of Ireland.
It was the conclusion of the board that the complainant failed to reach a qualifying mark under two of the headings viz. rules of the road and mechanical knowledge and general suitability.
The respondent contests the assertion that the marking system lacked transparency. A record of the marking system exists, details of the marks awarded to each candidate is available together with an overall report from the board of the placing of each qualified candidate along with short contemporaneous notes on the performance of each candidate. The respondent indicated to the Court that it is the practice within the Department to retain such records without reference to time limits.
The Department submit that there was no discrimination on the basis of race and that the complainant had not presented prima facie evidence to support his allegation of discrimination.
The Burden of Proof:
The burden of proof in cases of racial discrimination must in the view of the Court be implemented in accordance with Council Directive 2000/43/EEC. Once facts have been established to the satisfaction of the Court, which led to an inference of discrimination the burden of proof switches to the respondent to prove on the balance of probabilities that they have not discriminated against the complainant.
In referring to the complainant’s place of birth as being in England and asking about his RAF training the Court is satisfied that such comments are sufficient to lead to an inference that he was discriminated against on the ground of race. The burden of proof must therefore switch to the respondent.
Conclusion of the Court
The Court has considered the Equality Officer’s decision, the grounds of appeal and the submissions made at the hearing.
The Court is satisfied that the marking system devised by the interview board was a standard system used for such competitions and was consistently applied in this case to the complainant and to all other applicants. The job specification form for the position applied for stipulated that anessential requirementof the job was:
a satisfactory knowledge of the “Rules of the Road”, road procedures and the law relating to road traffic insofar as it concerns the driver of a mechanically propelled vehicle.
The Court is of the view that the complainant did not appreciate the importance of this requirement. He referred to this line of questioning by the interview board as “peripheral” and unnecessary due to his extensive driving experience, which implied that he knew the rules.
Having examined the marks attained by all candidates the Court is satisfied that the interview board placed particular emphasis on this requirement and those candidates who failed to reach a 50% mark on the Rules of the Road and Mechanical Knowledge section were all marked as “generally unsuitable” and consequently were unsuccessful in the competition. The Court is satisfied that the interview board treated all candidates in like manner in this regard and that his failure to answer the questions correctly is reflected in his failure to reach a qualifying mark under that section.
The Court also examined the allegation concerning the notification date to two other “foreign nationals”. The Court is satisfied that all candidates were notified of the outcome of the competition on the same day - 8th August 2001. The Court also notes that the competition was designed to put in place a panel of contract driver testers and that it was open to the interview board to select as many candidates as they wished. There was no limit on the number of candidates.
Fifteen candidates were selected, all of whom had attained a qualifying mark on the Rules of the Road and Mechanical Experience section and had as a minimum reached a 50% qualifying mark on all five criteria. Eight candidates were not selected; all of whom failed to reach a qualifying mark under two of the criteria - Rules of the Road and Mechanical Experience and General Suitability.
The complainant felt that his marking of 60 from 75 for his driving experience was a personal attack on him when he was placed approximately mid way on the panel of those who passed the driving test stage – he was placed joint 14th out of 23 candidates. He placed great emphasis on his driving skills. However, the Court notes that the marks for his driving skills were not measured on the basis of his experience as listed on his application form (which was extensive) but on a practical test carried out by two permanent driver testers in the Rathgar test centre. The results of which were forwarded to the Personnel Section.
The Court is satisfied that the marking system used to assess candidates for selection to the panel was transparent and unbiased and does not find grounds to uphold the complainant's contention that he was unfairly treated and in comparison with all other candidates was not treated in like manner was treated fairly and in like manner to all the other candidates.
Having listened to the evidence, the Court is also satisfied that while the remarks made by the chairman of the interview board could lead to an inference of discriminatory intent, they were in fact made with a view to exploring the complainant's work experience and putting the candidate at his ease. The Court notes that in support of his application, the complainant placed great emphasis on his RAF training – referring to their exacting standards as possibly being the best driving school anywhere.
Interview boards nevertheless should be extremely wary of making comments, which may carry an inference that a person is being discriminated against on any of the discriminatory grounds.
The Court notes that the Department has since changed its methodology and now uses competency based and structured interviewing techniques. Questions concerning place of birth no longer appear on the Department’s application forms.
Determination:
The Court has taken all of the evidence adduced into account. On the evidence presented, the Court is satisfied, that the complainant was not treated less favourably on the grounds of race in terms of Section 6 of the Employment Equality Act, 1998 and in contravention of Section 8 of the Act.
The appeal is dismissed.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th December, 2003______________________
LW/BRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.