Kearney -V - Department of Environment and Local Government
1. DISPUTE
1.1 This dispute concerns a claim by Mr. Kevin Kearney that the then Department of Environment and Local Government discriminated against him on grounds of race within the meaning of Section 6 of the Employment Equality Act 1998 and in contravention of Section 8 of the Act.
2. BACKGROUND
2.1 The complainant applied for a competition for driver tester in the Department of Environment and Local Government. Recruitment for these positions is carried out by the Civil Service Commission on behalf of and with the assistance of the Department. In 1998 the Commission arranged such a competition for which the complainant applied. The selection process involved three successive qualifying stages, a psychometric test, a practical driving test and a competitive interview. A number of successful applicants were placed on a panel by the Commission. This exceeded the number of permanent driver tester vacancies. However vacancies did exist for contract driver testers and the Department offered contract position to those candidates on the panel who had not secured permanent positions.
2.2 Subsequently candidates who had been successful at the first qualifying stage but had not undertaken the second and third stages were re quired to undergo such stages by the Department. Those who were successful were offered appointments as contract driver testers. The Civil Service Commissioners carried out the interview process for permanent driver testers with a Departmental representative on the board. The interview process was undertaken by the Department for contract driver testers. The complainant was one of the candidates interviewed by the Department for a contract driver tester position.
2.2 The complainant alleges that he was discriminated against on racial grounds during the interview. The complainant referred a complaint to the Director of Equality Investigations on 1 February 2002 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, on 25 March 2002 the Director then delegated the case to Deirdre Sweeney, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received from both parties and a joint hearing was held in 12 September 2002 following which further submissions were received. Subsequent correspondence with the parties concluded on 27 November 2002.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant is alleging that he was discriminated against on grounds of race in terms of Section 6 of the Act.
3.2 He states that having passed a psychometric test and a subsequent driving test he was called for interview by the Department of the Environment. He had thirty four years driving experience and had passed the advanced driving test twice. He was interviewed by three males. He alleges that before starting 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. He contends that 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.
3.3 The complainant states that he was first questioned on the Rules of the Road and Mechanical Knowledge. He states that while he was not exactly correct on two of the questions, his initial treatment and developing tension contributed to this. He contends that the questions he was asked were not directly appertaining to the position of driver tester. He states that while a thorough knowledge of the Rules of the Road is requirement for a driving tester one does not tend to learn off certain rules unless one has a need. He states that the lesser known rules would soon be learned on taking up the job and during training. The complainant further submits that the main rules and/or procedures relating to driving procedures were ignored.
3.4 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. He states that he was subsequently questioned on how he would change the test, what he thought of the granting of full licences to holder of second provisional licences in the 1970s, about incineration, national agreements and certain hypothetical job simulation questions. He queried the safety of a certain manoeuvre carried out on the test. He states that, notwithstanding the initial attack on his racial origins, he felt he had gained a grudging respect.
3.5 The complainant contends that the interview board had no criteria for awarding marks. His marks 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
He states that the reasons put forward to support this marking is that he did not succeed in demonstrating the required level of knowledge and general suitability.
3.6 The complainant contends that less than fair professional selection was applied to him. He suggests that the interviewers did not have the professional experience to select the most suitable candidates for the position of driver tester and in the absence of "marking guidelines" it was impossible for objective, fair, professional selection to take place. He states that no contemporaneous interview notes exist. He submits that he was uniquely placed because of his driving experience and further academic studies to make a difference, to make the driving test a meaningful event in the life of each individual sitting it. He contends that the interviewers were not competent to select the best candidates for the onerous position and alleges that people with whom they would prefer to work were given priority.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The Department totally refutes the complainant's allegation of racial discrimination during the course of his interview for the post of driver tester. It submits that the interview board was an experienced board whose working backgrounds, skills and knowledge gave them the necessary balance to carry out the interviews in an exemplary manner. The Department is totally satisfied that the complainant was not subjected to racial discrimination during the course of his interview. It submits that the complainant did not demonstrate to the board during the course of the interview that he was suitable having regard to the job requirements as issued to all candidates by the Civil Service Commission.
4.2 The Department states that the complainant was one of the candidates interviewed by the Department for a contract driver tester position. He was interviewed in July 2001. In relation to the complainant's allegations regarding the competence of the interview board, the Department stated it was chaired by a retired Assistant Secretary of the Department with over forty years experience as a civil servant. He has chaired and participated in many interview boards. His broad range of experience made him an ideal Chairman for this board.
4.3 The second member of the Board was the Chief Tester who had held this position for nine years and is responsible for operational matters in relation to the driver testing service. He has nine supervisory driver testers and 117 driver testers reporting to him. He is an experienced interviewer and has undertaken a course on interview techniques. The third member of the interview board is an Assistant Principal in the Driver Testing Section who held that position for eighteen months at the time the interview was held. He is responsible for the administration of the driver testing service. He had also completed training on interview techniques and had at that time participated in two interview boards for the Department.
4.4 The remit of the interview board was to select the candidates whose performance at interview demonstrated that they had the required skills and competencies to undertake the job of testing the driving competency of applicants for the driving test. The range and experience of the board gave them the necessary competence to select the most suitable candidates and the Department is confident that they carried out this function in a diligent, open and honest manner. The approach and procedures adopted by the interview board in relation to all candidates followed a well established pattern agreed beforehand by the members of the interview board. All candidates were asked broadly similar questions and the time allocated to each candidate for interview was the same. The interview was structured into four parts - initial discussion by the chairman based mainly on information in the candidate's application form, technical aspects relevant to the requirements of the post incorporating questions on road safety rules of the road and some elementary mechanical questions, general questions on the role of the Department, final discussion in the light of issues which arose during the earlier parts of the interview or pertaining to the competition.
4.6 The interviews for all candidates followed this format. The role of the chairman was to put candidates at ease and to lead them through previous work experience, academic or other achievements set out on the application form. This afforded candidates an opportunity to demonstrate the value of the experience gained by them either in terms of technical experience or personal development. In the complainant's case the question regarding his employment with the Royal Air Force was asked for this reason and not for any other reason. By asking this question the Chairman was affording him the opportunity to demonstrate what skills/competencies this experience had given him. The Chairman of the interview board totally rejects the allegation that he "spat" any question at the complainant.
4.7 In its initial submission the Department stated that the application form for the post which the complainant completed did not request the nationality of applicants so it was not possible for the interview board to know that the complainant was born in England. Subsequently during the course of the hearing it was confirmed that there was a question on the application form as to place of birth. The Department stated that from enquiries made at least one successful candidate was born in England and one in Northern Ireland.
4.8 The Chief Tester asked question in relation to the rules of the road , road safety generally. These questions formed an essential element of the interview. The Department states that a "satisfactory knowledge of the 'Rules of the Road', road procedures and the law relating to road traffic" was part of the requirements for the job which the complainant received from the Civl Service Commissioners together with his application form. The complainant by his own admission did not correctly answer questions in this section of the interview. It notes that while the complainant accepts that a thorough knowledge of the rules of the road is a requirement for a driver tester he admits that he did not know some of the rules. The Department states that according to the board members it was at this stage of the interview that it emerged that he was unable to deal adequately with most of the questions put to him. The questions asked in relation to rules of the road and road safety were relevant to the job. It was reasonable to expect a candidate for this position to be able to answer questions on these topics particularly as knowledge of both formed part of the requirements of the job.
4.9 The Department states that the criteria for the interview marking scheme were drawn up in conjunction with the management of the Driver Testing Service. They were based on the skills and competencies deemed necessary for the post of driver tester and provided a framework for the interview board to judge the suitability of candidates. They were judged under the headings -Rules of the Road and Mechanical Experience, Driving Experience, Decision-Making/Schedule Keeping, Interpersonal Skills, General Suitability. The pass mark was 50% under each heading . While there were no written guidelines each member of the interview board had the relevant experience and competency to judge each candidates performance against the selected criteria. The complainant's performance on three of the selected criteria (Driving Experience, Decision Making/ Schedule Keeping and Interpersonal Skills) placed him over the pass mark. On Rules of the Road/ Mechanical Knowledge he did not reach the pass mark. The Department points out that the complainant admitted in his statement that he did not answer questions correctly in this section of the interview and that he stated to the interview board that he was not expecting a "knowledge based" interview.
4.10 The Department states that it is very conscious of the need to select and recruit the most suitable candidates for the post of driver tester. The selection and composition of interview boards is an integral part of the process. The Department is confident that this board had the necessary combination of experience and knowledge to complete the task assigned to it in a competent manner and to the highest standards. The Department is satisfied that the board treated all candidates in a fair and equitable manner and this complaint of racial discrimination is totally unfounded and without a basis.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In reaching my decision I have taken into account all of the written and oral submissions made by both parties. The complainant has alleged discrimination on the race ground in relation to his interview for the position of driver tester and in relation to his subsequent failure to be appointed as driver tester. The issue for consideration by me is whether the respondent directly discriminated against the complainant on the race ground in terms of Section 6 of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act
5.2 Section 6 (1) of the Employment Equality Act, 1998 provides that :
" For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (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. "
Section 6(2) (h) provides that as between any two persons the discriminatory grounds are:
"that they are of a different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race")"
Section 8(1) of the Act provides
"In relation to -
(a) access to employment,
(b) conditions of employment
(c) training or experience for or in relation to employment
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee ..."
5.3 A person making an allegation of discrimination under the Employment Equality Act, 1998 has to present prima facie evidence of his or her allegation. Prima facie evidence has been described as:
"Evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred"1
5.4 The Labour Court has described the evidential burden which a complainant must discharge before a prima facie case of discrimination is made out and stated that the complainant must
" .."establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts 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 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 was no infringement of the principle of equal treatment.."2.
5.5 The complainant has alleged discrimination on the race ground . He states that he was born in England of an Irish father and an English mother and wh ile he has spent most of his life in Ireland he considers himself to be English. I note that the grounds put forward by the complainant as supportive evidence of discrimination are as follows:
(i) Before starting the interview the Chairman drew attention to the fact that he was born in the United Kingdom. The complainant felt compelled to explain the reasons for this and felt that he was expected to apologise for this.
(ii) Shortly after this he 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 got the distinct impression that he was unwelcome and an outsider. He contends that following these incidents he was mortally wounded as a prospective candidate.
5.6 When questioned by me at the joint hearing as to why a reference to being born in England would upset him and why he felt compelled to explain the reasons why he was born in England. He said it was because the Chairman did not look at him when he asked this and did not make eye contact. The complainant also contended that the question "What did that do for you" in relation to his RAF experience was derogatory and that no matter what way it was put, it was derogatory. He said he was very upset about this and was going to walk out of the interview at that stage. The Chairman of the interview board said that while he did not remember it specifically it was possible that he did refer to the complainant's place of birth. He would have looked at his application form and put questions to him from this.
5.7 During the hearing the Department apologised for stating in its submission that the application form did not have a question regarding place of birth, it did have such a question. This information was available to interviewers. The Department stated that, in preparing its submission, this information which was on the top right hand corner of Page 2 of the form was partially obscured by a staple. I expressed concern that a factually incorrect statement had been submitted to me and emphasised to the Department the seriousness of giving misleading or incorrect information to an Equality Officer. Having examined the application form I am satisfied that this section could be partially obscured by a staple and it was not the Department's intention to deliberately mislead me.
5.8 The Chairman stated that his role in the interview was to take candidates through their background, education, etc. If he made reference to the complainant's place of birth it would not have been in a derogatory manner. Many of his own family had to emigrate. The Chairman also stated that he would have requested information on the complainant's work in the RAF in relation to the training he received there. He had a high regard for the training provided by the RAF and by military institutes in general. It would have been in this context and in the context that the complainant had specifically drawn attention to his RAF experience in the application form. I note from the copy of the complainant's application form submitted that the complainant had drawn specific attention to his time in the RAF and the training that he received there in Section 4 "... other relevant information in support of your application".
5.9 I note that while the Chairman has accepted that he may have referred to the complainant's place of birth and questioned him on his RAF training, there is a direct conflict of evidence between the parties as to the tone, purpose and effect on the complainant of these references. I consider that, in this instance, referring to the complainant's place of birth and asking about training specifically referred to in the complainant's application form does not in itself provide prima facie evidence of discrimination on the racial grounds. I consider that it is necessary for me to look at the remainder of the evidence in this case to see whether an inference of unlawful discrimination can be drawn.
5.10 In relation to the markings given by the interview board to the complainant under the various criteria I note that the complainant required a pass mark of 50% under each. I note that the complainant's performance on each of three of t he selected criteria (Driving Experience, Decision Making/Schedule Keeping and Interpersonal Skills) placed him over the pass mark on these headings. I note that under the Rules of the Road & Mechanical Knowledge the complainant received 20 marks out of a total of 50 marks and consequently failed to meet the pass mark. I further note that the complainant himself accepts that he did not answer the road rules questions correctly. I consider that the marks awarded to the complainant under this heading reflect this. In the light of the foregoing I consider that the marks awarded to the complainant are justified and that there is no evidence to suggest that the complainant was given a lower rating on grounds of race. The complainant received a lower rating because he did not answer the road rules questions correctly.
5.11 In his submission the complainant said that from the beginning of the interview and the reference to his place of birth and his experience in the RAF he was very upset and that this effected his performance at interview. At the hearing the complainant stated that at the end of the interview he thought he had done a very good interview and was very happy with his own performance. He stated he was aghast when he was notified of the results. I consider that this does not concur with his original submission that his performance at interview was adversely affected because he was upset at alleged racism at the beginning of the interview.
5.12 Furthermore I note that following the notification of his results to him on 8 August 2001 he wrote and requested information on the conduct of the interviews under the Freedom of Information Act. He claimed in correspondence (letter of 22 August 2001) with the Department that he had been unfairly and/or unjustly treated and also stated that he had consulted and received advice from the Equality Authority in this regard. The information he requested in the correspondence with the Department in the period between August 2001 and February 2002 related to the age of other candidates, length of their driving experience, their previous employment, marking scheme guidelines, interviewers contemporaneous notes, attachment or affiliation of interviewers to the GAA. I note that in this correspondence the complainant made no reference whatsoever to the alleged references/questioning to which he is now objecting nor did he make any request regarding information relating to race or place of birth of other candidates. I am satisfied that there is no evidence to support the complainant's contention that references to his place of birth and his RAF experience upset him at the interview and adversely impacted on his performance. I am therefore satisfied that the evidence does not suggest that the complainant should have obtained a higher marking than he did.
5.13 I am satisfied that having considered the totality of the evidence that the claimant has failed to submit prima facie evidence of discrimination. I consider that the evidence does not suggest that the complainant was treated less favourably on grounds of race. In this regard I feel I should also state that I do not consider that the statistics in relation to successful applicants would lead any reasonable person to believe that discrimination on the grounds of race had occurred. I note that the statistics provided by the respondent indicate that 23 people passed the qualifying practical tests and were called for interview. Three of these people including the complainant were born outside the Republic. 15 people qualified at interview, two of whom were born outside the Republic, one in the
Britain and one in Northern Ireland.
5.14 Consequently I am satisfied that the evidence available to me does not support the complainant's claim of discrimination 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.
6 DECISION
6.1 On the basis of the foregoing, I find that the then Department of Environment and Local Government did not discriminate against the complainant contrary to the provisions of the Employment Equality Act, 1998.
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Deirdre Sweeney
Equality Officer
20 March 2003
1Equality Officer Recommendation - Dublin Corporation v Gibney (EE5/1986)
2The Southern Health Board v Dr. Teresa Mitchell DEE011 15 February 2001