DEC-E2003-014 Full Case Report

Burke (Represented by the INO) V South Eastern Health Board (Represented by the HSEA)

1. DISPUTE

1.1 This dispute concerns a claim by the Irish Nurses Organisation (INO) on behalf of Ms. Brigid Burke who is employed as an Assistant Director of Nursing by The South Eastern Health Board that she was discriminated against in terms of Sections 6(1) and 6(2)(a) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when she was not appointed to the position of Director of Nursing in St. Joseph's Hospital in Dungarvan, Co. Waterford.

2. BACKGROUND

2.1 The complainant applied for the position of Director of Nursing in St. Joseph's Hospital, Dungarvan, Co. Waterford. She was one of three candidates (two female and one male) who applied for the position and two candidates (one male and one female) attended for interview. The complainant was unsuccessful in her interview and the successful candidate was male. It is the complainant's contention that she had better qualifications and more relevant experience than the successful male candidate. The complainant appealed the decision of the interview board but to no avail.

2.2 Consequently the Union, on behalf of the complainant, referred a complaint to the Director of Equality Investigations on 23rd January, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Deirdre Sweeney, Equality Officer on 22nd March, 2002. For operational reasons and with the consent of Ms. Sweeney the case was reassigned in accordance with Section 75(7) of the 1998 Act to Gerardine Coyle, Equality Officer on 3rd October, 2002 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 took place on 6th February, 2003. Futher written arguments were made by the complainant and received by the Equality Officer on 10th March, 2003.

3. SUMMARY OF THE COMPLAINANT'S SUBMISSION

3.1 The complainant is employed by the respondent as an Assistant Director of Nursing in St. Joseph's Hospital, Dungarvan, Co. Waterford and she alleges that the respondent discriminated against her in a competition for the post of Director of Nursing at the hospital. It is further alleged that the respondent compounded the effects of the discrimination by pervaricating on her appeal of the outcome of the interview process for a period of nine months before reaching a final decision. The complainant notes that the post of Director of Nursing, St. Joseph's Hospital was awarded to the only other candidate for the position who was male and who, it is alleged, holds lesser qualifications and experience than her. The complainant is seeking redress in the form of compensation for the discrimination which occurred and for the distress and embarrassment caused to her by the original act of discrimination and the subsequent indecision on her appeal.

3.2 The complainant states that she applied for the post of Director of Nursing at St. Joseph's Hospital on 3rd January, 2001. She was called for interview on 6th March, 2001 which was scheduled to commence at 10.45a.m. at the respondent's Head Office. The complainant drove from her home in Dungarvan to Kilkenny for the interview and arrived at 10.30a.m. She was not called for interview until 11.00a.m. The complainant says that she found this off-putting and, although the Chairperson apologised for the delay, she considers that this set the tone for what was subsequently a most uncomfortable and difficult exchange in which she believes that the interview board displayed contempt for the views she held with regard to the future development of services for older people.

3.3 According to the complainant she found the interview to be a particularly trying experience in that the approach of the interview board prevented her from developing a rapport which is necessary for a comfortable interview. The complainant believes that she was not allowed to develop her answers in order to demonstrate her skills or capabilities and that, on several occasions, she was interrupted by one of the interview panel members with the statement "I didn't ask you that". The complainant notes that the same panel member addressed her by her christian name and failed to maintain eye contact throughout the interview. It was the complainant's impression that this interview panel member was watching the clock behind her (the complainant) and she felt that the interview was particularly short at 35 minutes. The complainant states that she has an impressive list of educational achievements and further studies and the interview panel did not ask any questions about those achievements.

3.4 It is the complainant's contention that she had thoroughly prepared for a management interview but she felt that the questions were more akin to those she would ask a staff nurse applying for employment in the hospital. At the interview the complainant was asked "what would you do with a donation of £500,000". In answering this question the complainant introduced the fact that she had initiated and been involved in voluntary fund raising efforts on behalf of the hospital in an attempt, she says, to show a holistic approach to the development of the services for older people at the hospital and how such an injection of finance would compliment work which she had already been involved in initiating. The complainant says that she was stopped and told "I did not ask you that". Later in the interview the complainant says that she was asked for her vision of the future of the hospital. In attempting to show her enthuasiam which she had already demonstrated back at the hospital, the complainant explained her belief that the service could be developed to the point where the hospital would be considered a unit of excellence in elderly care, developing and implementing standards and introducing clinical nurse specialists to the service. In response the complainant says she was asked to "be realistic". The complainant states that, at the interview, she stated that she encouraged continuous professional development among the staff and that the hospital had two nurses studying for their Batchelor of Nursing Degree. The complainant submits that she was taken aback when asked by a member of the interview panel to "be serious, why would I need nurses with Degrees in Elderly Care".

3.5 The complainant subsequently received a letter from the respondent advising her that she had been unsuccessful in the competition. On 4th April, 2001 the complainant wrote to the Director of Human Resources at the respondent organisation seeking copies of the assessment form used and the markings which she received under each heading. The complainant subsequently explained her dissatisfaction with the outcome of the competition to the Chief Executive Officer who visited the hospital and she subsequently set out her dissatisfaction to him in writing by letter dated 18th April, 2001. On 2nd May, 2001 the complainant received a letter from the Director of Human Resources apologising for not having replied sooner and stating that the Chief Executive Officer had asked for the matter to be investigated. The Director of Human Resources stated that she expected the investigation to take "a week or two" and that she would be writing to the interview panel members for a response to the complaints by the complainant. The Director of Human Resources attached a copy of the marking sheet completed by the interview panel.

3.6 The complainant states that she was devastated at the total marks awarded to her which were less than 50% of the selection criteria total which effectively declared that not only was she not the successful candidate but that she was not considered qualified to fill the role of Director of Nursing. The complainant considers this quite remarkable given that she had filled the post of Assistant Director for a period of two years prior to the competition for the post of Director and she had acted in the Director position in the absence of the Director. She continued to act as Director of Nursing from April to 6th January, 2002 (after this interview process). Set out in Appendix A is the details of the selection criteria adopted by the interview panel, the complainant's attributes, the marks awarded by the interview panel and the complainant's comments on those markings.

3.7 The complainant states that despite the Director of Human Resources saying that the investigation would take "one or two weeks" she heard nothing. The Union attempted to establish the status of the investigation on her behalf but promises made were broken by the respondent. Finally on 7th November, 2001 the complainant was informed by staff at the hospital that her appeal had been rejected and that the position would be filled by the other candidate. In response to a letter to the Regional Staff Relations Manager the complainant was told that no-one had been informed of the outcome of the appeal or the proposed appointment of the new Director. In the same letter the Regional Staff Relations Manager told the complainant that the Chief Executive Officer supported the recommendations of the Director of Human Resources who had found that she could "find no objective grounds, having examined the information supplied, or criteria which would justify the overturning of the recommendation of the Interview Panel". The complainant notes that this was the only letter she received in the matter. She was not directly advised that her appeal had failed, when the new person would be appointed and take up duty and when her period of acting up would cease. The complainant states that the record of the interview and the assessment added more confusion and frustration to her sense of grievance with the respondent and the interview panel. According to the complainant the marking left her bewildered and the fact that the successful male candidate was also an applicant for the position of Assistant Director of Nursing in July, 1999 when she was successful convinces her that discrimination occurred on this occasion.

3.8 The complainant states that she was deemed unsuitable for the permanent position of Director of Nursing by an interview panel on 6th March, 2001. The said interview panel awarded her less than 50% of the available marks in the competition thus deeming her unfit to fulfil the role which she occupied on an acting basis at the time and which she continued to fill for a further nine months subsequent to the interview. The complainant says that the effect of this decision was that the only other candidate for the job, a male whom she believes holds lesser qualifications and less experience than her, secured the post. Furthermore one of the interview panel had sat on the interview panel on the previous occasion (for appointment to Assistant Director of Nursing) and this person had told the complainant that she was eminently qualified for the post of Director when it would arise. However the complainant notes that the marks awarded for both her qualifications and experience do not reflect such an option.

3.9 The complainant states that the European Court of Justice has in a number of previous cases relating to discrimination ruled that the outcome or effect is what matters in such cases, whether or not there was motive or intention to discriminate. Furthermore the complainant says that the court has ruled that in cases where an employer's action favour a male over a female, the burden of proof shifts to the employer who must demonstrate objectively justified factors unrelated to discrimination on grounds of sex for their decision.

3.10 The complainant appealed the decision of the interview panel outlining six specific complaints in relation to the actual interview. She notes that it took the respondent eight months to consider the appeal and it never communicated its outcome directly to her. Furthermore the complainant notes that no explanation was given to her for the markings given by the interview panel and the individual notes taken on the day of the interview were not supplied. As the complainant already filled the post on an acting basis and continued to do so for nine months after the interview, it is her view that the scores for knowledge, core competencies and special competencies do not add up.

3.11 The complainant states that the prevarication by the respondent in dealing with the appeal lodged by her compounded the sense of discrimination felt by her arising from the interview process. The commitment of the Director of Human Resources to complete the investigation within two weeks proved grossly misleading and inaccurate. The complainant says that the handling of the investigation compounded the undermining of her position within the hospital and was a cause of great distress to her. The description of how the interview progressed would suggest to the complainant that she had no chance of achieving the position and seemed designed to destroy the interview process for her rather than acknowledge her true worth to the hospital. The complainant states that the fact that an interview panel member called her by her christian name and did not maintain eye contact and the fact that she was interrupted by two of the interview panel members ensured that she could not give her best on the day. It is the complainant's belief that the entire episode was designed to produce a low mark which could then be used to justify awarding the post to the male candidate.

3.12 The complainant states that there is evidence of vertical occupational segregation in the nursing profession. In general nursing males occupy 2% of Staff Nurse (basic grade) posts while 15% of Director of Nursing posts are filled by men. In psychiatric nursing where males fill 40% of Staff Nurse positions they occupy 96% of Directors of Mental Health Nursing posts and females fill only 4% of such posts, in spite of the existence of a 60% presence in the Staff Nurse grade. The complainant argues that this indicates a clear bias in favour of men filling Director posts in Nursing.

3.13 In conclusion the complainant states that, at the time of interview, she had 29 years experience spanning Staff Nurse, Senior Staff Nurse, Ward Sister, Assistant Director of Nursing and Acting Director of Nursing. She has always worked hard and her educational qualifications and experience has been acknowledged when competing for the post of Assistant Director of Nursing and subsequently. Despite this the complainant notes that the interview panel deemed her worthy of 538 marks out of a possible 1,100 marks based on a 35 minute interview. The complainant contends that the marks awarded lack credibility in the context that she had successfully filled the role of Acting Director of Nursing both prior to and after the interview. The complainant also finds the decision to award the post to a male who had previously finished behind her in a competition for Assistant Director of Nursing as incredible. According to the complainant her appeal of the interview panel decision to the respondent was dealt with in a tardy fashion and has failed to provide satisfactory answers. It is the complainant's belief that she has shown that the respondent has discriminated against her in the appointment of the Director of Nursing, St. Joseph's Hospital, Dungarvan.

4. SUMMARY OF THE RESPONDENT'S SUBMISSION

4.1 The respondent states that the complainant is employed by the respondent organisation since 1973. She was employed as a staff nurse in various locations from 1973 to 1977. In 1977 she was promoted to Ward Sister, St. Joseph's Hospital, Waterford and she held this post until 1999. From March to September, 1999 she acted as Assistant Director of Nursing in St. Joseph's Hospital and in September, 1999 she was appointed to the position of Assistant Director of Nursing in that hospital. The respondent states that St. Joseph's Hospital, Dungarvan is a small hospital with 120 beds and an annual budget of €4.7m. It provides long term care for the elderly and since 1985 rehabiliation services have been available. The hospital has a total complement of 41.75 whole-time equivalent (WTE) nursting staff and 60.40 WTE non-nursing staff. (Dunabbey House, a 40 bed welfare home for the elderly is also managed by the staff of St. Joseph's Hospital. It has a nursing complement of 2.61 WTEs and 8.5 WTE non-nursing staff.) According to the respondent St. Joseph's Hospital has a small management structure and a small number of nurses holding nurse management positions. The Director of Nursing post (formerly hospital Matron) is the top level nurse management post in the hospital. The respondent states that its policy in relation to the filling of vacant posts is to afford all suitably qualified candidates equality of opportunity to compete for the position and it notes that the job advertisement for this position (Director of Nursing) clearly stated that the respondent is an equal opportunities employer.

4.2 The respondent states that there were three candidates (two female and one male) for
the post of Director of Nursing and two candidates attended for interview. The interviews were held on 6th March, 2001. The composition of the Interview Board was one male hospital manager and two female Directors of Nursing. Each interview board member had an equal say in the selection process. The Interview Board used the following assessment criteria and marking system:

Educational Qualifications 100 marks
Experience 100 marks
Knowledge/Professional Knowledge 100 marks
Core Competencies 400 marks
Special Competencies 400 marks
Other requirements
Total 1,100 marks

The precise topics on which the candidates were to be examined were circulated in advance to each candidate and to each member of the Interview Board in the Documentation relating to the appointment of Director of Nursing, St. Joseph's Hospital, Dungarvan, Co. Waterford. This document entitled "Person Specification/Selection Criteria" (see Appendix B) outlines the factors to be considered (qualifications, experience, knowledge, core and special competencies and other requirements of the post) and the essential and desirable requirements under each of these. The details of the marks awarded to each candidate under the different headings are set out in Appendix C.

4.3 The respondent notes that the result of the interview was that the male applicant was successful in obtaining the post of Director of Nursing in St. Joseph's Hospital. On being informed that she had been unsuccessful the complainant wrote to the Chief Executive Officer of the respondent organisation on 18th April, 2001 and expressed concerns both with the result and the conduct of the interview and stated that she was treated discourteously on the day of the interview because the interview did not start on the scheduled time; only lasted approx. 35 minutes; she was called by her Christian name on a number of occasions by one member of the interview board and that she was interrupted on several occasions. The Director of Human Resources replied to the complainant's letter stating that the Chief Executive Officer had asked for the matter to be investigated and a copy of her marks under each of the assessment criteria was enclosed. The Director of Human Resources also wrote to the Interview Board members giving a summary of the complainant's complaints and asking them to respond to same. Each of the Interview Board members replied to this letter and in response stated that while they acknowledged that the start of the complainant's interview had been delayed, the Chairman had apologised for the delay and this apology was accepted by the complainant, they all felt that there was no basis to the other complaints.

4.4 The respondent states that it is committed to equal opportunities and denies that it discriminated against the complainant contrary to the provisions of the Employment Equality Act, 1998 and it contends that the selection process was conducted without regard to the gender of the candidates. According to the respondent each candidate and member of the Interview Board was given a copy of "Documentation relating to the appointment of Director of Nursing, St. Joseph's Hospital, Dungarvan, Co. Waterford". This documentation sets out relevant information such as the prescribed Particulars and Qualifications for the post, the Job Description and the Person Specification/Selection Criteria. It also contains a list of the characteristics to assist candidates and the Interview Board i.e. the essential and desirable requirements in relation to a number of factors such as qualifications, experience, knowledge and competencies. The Interview Board comprising two females and one male deliberated on the marking system, line of questioning and review of CVs on the morning prior to commencement of the first interview. The respondent states that the Interview Board recorded that the complainant's interview commenced at 10.55a.m. and continued until 11.45a.m. (a total of 50 minutes).

4.5 The respondent notes that the complainant alleged that the successful male candidate had competed for the post of Assistant Director of Nursing in July, 1999 and had been unsuccessful in that competition which resulted in her appointment as Assistant Director of Nursing, St. Joseph's Hospital, Dungarvan (see paragraphs 3.7 and 3.13 above). The respondent, having examined its records, states that the successful male candidate was not a candidate in that competition nor did he request an application form in respect of that vacancy.

4.6 According to the respondent the interview is a standard element of the recruitment and selection process and is a tool used to examine candidates' ability to carry out the duties of a particular position. The respondent says that while a candidate, on paper, may appear to possess experience, education, training, etc. the purpose of the interview is to establish the benefits which the candidate has derived from their education and experience and to assess the value which these would bring to the position for which they had applied. It is the respondent's contention that the interview provides an opportunity to assess less tangible attributes such as organisation skills, interpersonal skills, communication skills, people management skills, etc. which are particularly important attributes in this job. The interview also affords a candidate an opportunity to demonstrate their skills, personality and abilities at a practical level. The respondent states that, in order to be objective and fair, the Interview Board marks candidates as they perform on the day of the interview.

4.7 In relation to the marking the respondent notes that the Interview Board, prior to the commencement of the interviews, decided to further breakdown the marks awarded for Educational Qualifications and Experience e.g. marks were to be awarded for diplomas/degrees. For the remaining selection criteria marks were granted on the basis of the candidates' responses to the questions asked. The questions were asked to elicit the candidates' ability in the areas of organisational and leadership skills, communications, human resource management, change management, quality focus/best practice and financial management/budgetary skills. In terms of marks awarded to the candidates the respondent notes that while both candidates received similar marks for qualifications the successful candidate received a significantly higher mark for experience as he had more senior managerial experience than the complainant. He also scored considerably higher under the core and special competencies for the post.

4.8 In terms of educational qualifications the respondent states that the Interview Board applied the same criteria to both candidates. The marking system was broken down as follows:

It is, therefore, the respondent's contention that it did not discriminate against the complainant on the basis of her gender in relation to the assessment of her education attainment.

4.9 The respondent states that the Interview Board outlined the marking criteria to apply to experience gained by the candidates (Appendix D refers). The complainant received 29 marks while the successful male candidate received 71 marks in respect of experience. It is the respondent's contention that these marks were awarded without reference to the gender of the candidates. The majority of the marks awarded in this category related to senior management experience. The male candidate scored higher in this aspect of the selection process as he was awarded 38 points for his senior management experience as Community Care Director of Welbeck Care Limited/Blue Arrows Care. The respondent notes that the complainant's experience on the other hand was mainly at staff nurse level with less than 4 years experience at ward sister level and above.

4.10 In respect of the competencies examined during the interview process namely knowledge, professional knowledge, core competencies and special competencies the respondent states that these are less tangible attributes which must be assessed by the candidates' responses to the questions asked at interview. According to the respondent the interview took a standard form in that the questions asked were designed to elicit the candidates competency in these areas. The respondent notes that candidates were aware that these competencies were to be covered as they were indicated in the explanatory documentation which was sent to candidates in advance of the interview. The respondent notes the complainant's contention that the interview was conducted in such a manner as to make her feel uncomfortable and ill-at-ease. However it says that the Interview Board asked questions to examine competence in vital areas such as strategic planning and where the complainant failed to answer the specific questions she was redirected in order to focus her answers. The respondent says that this was done in a positive rathar than a critical way. It is the respondent's submission that the Interview Board operated in a transparent manner and awarded marks objectively in line with the agreed competencies or requirements for the job and the complainant failed to convince the Interview Board that she had the competencies to succeed.

4.11 According to the respondent the Interview Board's constructive comments indicate that the complainant did not perform well on the day of the interview and did not demonstrate her ability and suitability for the position. It was noted that she 'appeared anxious'; was 'hesitant and poorly structured in her answers' and 'did not answer specific questions asked in all areas'. In contrast it was noted that the male candidate 'presented well' and 'demonstrated knowledge and skills required'. Nothwithstanding the complainant's educational attainments and her breadth of experience, the respondent states that the Interview Board was not satisfied that she was the more suitable applicant for the position of Director of Nursing based on her performance at interview.

4.12 In conclusion the respondent states that the interviews were conducted in a fair, objective and impartial manner. Each candidate was marked on the skills and competencies evidenced by their responses to the questions relating to the job criteria. It is the respondent's submission that no question was asked of the complainant that would indicate bias on the grounds of gender. The marks awarded to the complainant reflected her performance at interview on the day. On this basis the respondent states that it did not discriminate against the complainant contrary to the provisions of the Employment Equality Act, 1998.

5. CONCLUSIONS OF THE EQUALITY OFFICER

5.1 The issue for decision in this claim is whether or not the South Eastern Health Board discriminated against Ms. Brigid Burke in terms of Section 6(1) and Section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when it did not appoint her to the position of Director of Nursing, St. Joseph's Hospital, Dungarvan. In making my decision in this claim I have taken into account all of the information, both written and oral, received from the parties.

5.2 Section 6(1) of the Employment Equality Act, 1998 provides that discrimination shall be taken to occur where, on any of the grounds (in this case the ground of gender) "one person is treated less favourably than another is, has been or would be treated".
It is the complainant's allegation that she was treated less favourably on the grounds of gender when she was not successful in a competition for appointment to the position of Director of Nursing, St. Joseph's Hospital, Dungarvan and the successful candidate was male. In making an allegation of discrimination the complainant has to present prima facie evidence of 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."²
In the case of the Rotunda Hospital v Noreen Gleeson³ the Labour Court applied this test stating:
"The first question the Court has to decide is whether the appellant has established a prima facie case of discrimination".
In this case the complainant has argued that the marks awarded to her did not reflect her qualifications, experience, knowledge and competencies for the vacant position. The respondent has argued that its procedures were transparent and that it did not discriminate against the complainant on the grounds of her gender. The respondent also referred to the Labour Court Determination in the case of Dublin Institute of Technology and A Worker⁴ in which it held as follows:
"It is not the responsibility of the Equality Officer or this Court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the sex or marital status of the complainant or the appointee influenced the decision of the
Board".

5.3 The position applied for by the complainant was that of Director of Nursing, St. Joseph's Hospital, Dungarvan. The position advertisement sought applications from candidates who have satisfactory general nursing experience and are registered or entitled to be registered in the General Division in the Register of Nurses. The advertisement also stated that candidates must possess such knowledge and experience of hospital administrative routine as would enable her/him to discharge satisfactorily the duties of the office. Applicants for the position and interview board members were furnished with a copy of documentation relating to the appointment. This documentation provided an outline of the factors to be considered (i.e. qualifications, experience, knowledge, competencies and other requirements of the post) and the essential and desirable requirements under each heading which are set out in Appendix B.

5.4 I have examined the marking system used by the interview board in this competition. The interview board applied the following marks to the selection criteria used to assess each candidate for the position of Director of Nursing:

Selection Criteria / Marks
Qualifications 100
Experience 100
Knowledge/Professional Knowledge 100
Core Competencies 400
Special Competencies 400

The interview board agreed to allocated marks for qualifications as follows:
50 marks - Registered General Nurse
10 marks - Registered Psychiatric Nurse
20 marks - For each Degree
10 marks - For each 2 year Diploma
5 marks - For each 1 year Certificate
6 marks - For any other courses including day courses (overall allocation)

In relation to the marks awarded for experience the interview board agreed the
marking structure as set out in Appendix D. The interview board did not give any indication as to how marks were allocated to candidates on the basis of knowledge, professional knowledge, core competencies or special competencies.

5.5 At the hearing of this claim the complainant argued that it was neither essential nor desirable for candidates to be registered in Psychiatry, yet the successful candidate was awarded 10 marks for this qualification. In terms of experience the complainant noted that many of the marks awarded to the successful candidate related to his experience in Psychiatric as opposed to General Hospitals. The complainant also argued that the successful candidate was employed on Agency work while he held the position of Community Care Director. It was the complainant's contention that, in this role, the successful candidate was not gaining what was deemed essential experience in hospital administrative routine and, therefore, should not have been awarded such high marks for this experience. The complainant also noted that, while Community Care Director in London, the successful candidate undertook a Diploma course in the University of Limerick and also did relief work in Acute Psychiatric Hospitals throughout London. It is the complainant's contention that the successful candidate was given credit as if he was running a hospital whereas in fact the London operation was small and he had time to undertake other activities e.g. relief work and courses which the complainant stated he would have been unable to do if he had been running a hospital. The complainant considered the marks awarded to her for knowledge, professional knowledge, core competencies and special competencies as low given her nursing career and the fact that she had acted in the position of Director of Nursing.

5.6 The respondent stated that it had set out in detail the markings to be applied to each candidate for the position of Director of Nursing in terms of qualifications and experience and that these markings were applied to candidates irrespective of their gender. In terms of experience the respondent stated that because the successful candidate worked so much outside the country the interview board had to decide how the positions held by him equated with positions held in the Nursing profession in Ireland. According to the respondent the decision to award the successful candidate 38 marks for his experience as Community Care Director was based on the outline of his experience in his C.V. and of his elaboration of that experience at the interview. The respondent stated that the marks awarded for knowledge, professional knowledge, core competencies and special competencies were based on candidates performance at interview and the complainant herself had indicated to the interview board that she did not consider that she had done a good interview.

5.7 In terms of the marks awarded by the interview board for qualifications I note that marks were awarded for various qualifications e.g. degrees, diplomas, etc. even though these were not specified as essential or desirable. I, therefore, consider that it was reasonable for the interview board to award a nominal mark for the qualification in psychiatry. In relation to the marks awarded for experience I note that the interview board had to equate gradings in other jurisdictions with the gradings in this jurisdication and then allocate marks accordingly. The complainant was critical of the interview board's decision in this regard but, according to the interview board it made its decision on the basis of the successful candidate's application and interview. It is a matter of opinion whether or not the interview board got this allocation of marks correct but I am not satisfied that there is any evidence that the interview board awarded higher marks for experience to the successful male candidate on the grounds of his gender. The marks allocated for the other criteria were based on performance at interview and the complainant herself, both in her submission and at the hearing of this claim, has acknowledged that she found the interview difficult and disjointed. This view of the interview corresponds with the interview board's perception of her performance when they described it as "Appeared anxious. Hesitant and poorly structured in her answers". On balance I find that the complainant has failed to establish a prima facie case of discrimination.

5.8 I note that the interview board allocated 400 marks each to core competencies and special competencies. The interview board made no effort to give a breakdown of this mark and as it comprised the bulk of the total marks it gave the interview board a large measure of discretion. The respondent could be criticised for having failed to operate open and fair procedures in relation to this competition as there was no breakdown of these marks which represented in excess of 70% of the total marks. In future competitions the respondent should set out in detail the markings to be awarded under the various criteria and this should be done in advance of applications being received for the competition. The interview board would then apply the marks set out by the respondent and use its discretion in equating qualifications from different jurisdications but at the same time justifying those decisions.

5.9 Following the hearing of this claim the complainant submitted a standard marking system which she said was used in most management competitions in the respondent organisation. It was the complainant's contention that the standard marking system was rearranged in this case in a manner which clearly favoured the successful male candidate. In support of this contention the complainant sets out anomalies between the marks awarded for experience based on the criteria adopted by the interview board as opposed to the use of the standard marking system. I note that experience was only one component of the criteria used to evaluate the candidates and as I have already stated at paragraph.

5.7 above the interview board was not satisfied with the complainant's performance at interview hence the fact that the complainant received much lower marks for other criteria namely competencies and special competencies.

5.10 The complainant raised some further issues which I consider warrant mention as follows:
(a) In her submission the complainant referred to the fact that one of the interview members addressed her by her Christian name. While this smacks of a lack of professionalism on the part of the interviewer I do not find that it was discriminatory. The complainant has alleged that this same interviewer failed to maintain eye contact throughout the interview. While this may have been off-putting for the complainant it was not discriminatory.
(b) The complainant, both in her submission and at the hearing of this claim, stated that, during the course of her interview, she was interrupted on several occasions and that some of the interruptions were designed to belittle her response to questions asked. The respondent has denied this and said that were it was considered that the complainant was failing to answer the question asked she was gently redirected to the question. According to the respondent any challenge to what the complainant stated in response to questions asked was done in a positive manner and was for the purpose of allowing her to elaborate on her response. There is no evidence to confirm or deny the complainant's allegation in this regard.
(c) The length of time it took the respondent to undertake the investigation of the complainant's appeal of the interview board's decision is unfortunate and one could be critical of the respondent's failure to keep the complainant up-to-date on progress. However this was not discriminatory under the Employment Equality Act, 1998.

5.11 In conclusion, therefore, I find that the complainant has failed to show that she was better qualified and had more experience than the successful male candidate.

6. DECISION

6.1 Based on the foregoing I find that the South Eastern Health Board did not discriminate against Ms. Brigid Burke in terms of Sections 6(1) and 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 Director of Nursing, St. Joseph's Hospital, Dungarvan.

__________________
Gerardine Coyle
Equality Officer
20th March, 2003

APPENDIX A

Details of Selection Critera, Candidate's attributes Scores awarded and Complainant's
comments

The complainant's comments on the above:

Qualifications - 79 out of 100
From the scoring sheet it appears 50 marks were awarded for the essential criteria of being a registered RGN. However, the desirable qualification identified in the SEHB person specification/selection criteria states "a third level qualification in gerontology and relevant management qualification". The complainant possesses both of these, one from the University of Limerick and the other from University College, Cork (details of which had been supplied on her CV). The complainant notes that half of the remaining marks were awarded for these and only six marks for all other relevant courses with no points awarded for current studies with the R.C.S.I. Given that the complainant received an honours diploma from UCL Health Service Management and a distinction certification on psychological nursing care of the Older Adult (gerontology) one must question what would have been required to get greater than the 23 points assigned to her.

Experience - 29 out of 100
The essential criteria in this category are five-year post registration experience including that of hospital administrative routine. The complainant has twenty-nine years post registration experience, many of which were spent as a Senior Staff Nurse administering on the ward, two at Ward Sister and at the time of the interview two years as permanent Assistant Director of Nursing, having qualified in first place in 1999 and including periods of time acting as Director of Nursing. The desirable criteria in this category were "staff/budget supervisory experience". In spite of all this the Interview Panel awarded four marks only for experience based on current substantive post, i.e. Assistant Director of Nursing. Ten for Ward Sister and fifteen for Director of Nursing experience. This marking is extraordinary in that it implies that the complainant is, in fact, less qualified to be an Assistant Director of Nursing and Ward Sister than to be Director of Nursing. Further the complainant held the position of both Ward Sister and Assistant Director of Nursing with proven competence and without question.

Knowledge/Professional Knowledge
Again the complainant has practical experience as a Staff Nurse, Ward Sister, Assistant Director of Nursing, Assistant Director of Nursing, educational qualifications, participation in the INO Executive Council and at Vice President level and a proven track record. The complainant has demonstrated that she possesses an abundance of both the essential and desirable criteria in this category. Those outlined as essential were to have extensive and theoretical knowledge and desirable to have extensive knowledge of modern principles and practice of hospital operations and nursing management.

Core/Special Competencies
It is under these headings that the Interview Panel has the greatest discretion regarding the performance at the interview. The complainant says that, given that there were three Interview Panel members, only one record of the interview and assessment was given it is difficult to comprehend how this mark was established. Even allowing for a bad interview no attempt seems to have been made to evaluate the work already undertaken at St. Joseph's Hospital by the complainant. The complainant states that this marking is all the more remarkable when one considers that one of the Interview Panel members had, in fact, been involved in the selection of her for her post as Ward Sister and subsequently Assistant Director at St. Joseph's. Such was the familiarity of this particular Interview Panel member with the complainant's record that after her successful appointment to Assistant Director she commented on her outstanding educationaly achievements and advised her that she need not worry about taking further courses in preparation for the Director post when it would come up as she was already more than qualified.The complainant finds it ironic that this Interview Panel member repeatedly called her by her Christian Name throughout the interview.

APPENDIX B

Person Specification/Selection Criteria
SOUTH EASTERN HEALTH BOARD
PERSON SPECIFICATION/SELECTION CRITERIA
POST: Director of Nursing
DEPARTMENT: Services for Older Persons
LOCATION: St. Joseph's Hospital, Dungarvan
DATE: December, 2000

APPENDIX C

Marks awarded to candidate interviewed for Director of Nursing position

Of a total of 1100 marks the complainant received a total of 538 while the successful male candidate received a total of 807.

The Interview Board Members made the following Constructive Comments for the complainant and the successful male candidate:

Complainant
"Appeared anxious. Hesitant and poorly structured in her answers. Did not answer specific questions asked in all cases."

Successful Male Candidate
"Presented well. Demonstrated knowledge and skills required."

APPENDIX D

Marking criteria applied by the Interview Board to experience

GRADE / MARKING
Deputy Nursing Officer/Assistant Ward Sister - 3 marks p.a.
Ward Sister - 5 marks p.a. up to 5 years (max. 25)
Acting Ward Sister - 3 marks p.a.
Assistant Director of Nursing - 10 marks p.a. up to 5 years (max 50)
Acting Assistant Director of Nursing - 8 marks p.a. up to 5 years
Deputy Ward Manager/Night Service/Manager/Nursing Supervisor - 5 marks p.a. up to 5 years
Community Care Director - 7.5 marks p.a. up to 5 years

²Equality Officer Recommendation - Dublin Corporation v Gibney (EE 5/1986)

³Labour Court Determination - DEE 003/2000

⁴Labour Court Determination - DEE 994