FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : SOUTH EASTERN HEALTH BOARD (REPRESENTED BY HEALTH SERVICES EMPLOYERS' AGENCY) - AND - BRIGID BURKE (REPRESENTED BY THE IRISH NURSES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Equality Officer's decision Dec-E-2003-014 under Section 83 of the Employment Equality Act, 1998
BACKGROUND:
2. The complainant referred her case to the Labour Court on the 29th of April, 2003. A Labour Court hearing took place on the 12th of September, 2003. The following is the Court's determination:
DETERMINATION:
This is an appeal under Section 83 of the Employment Equality Act, 1998, against Equality Officer's Recommendation DEC-E2003-012.
Background:
The complainant - Ms Brigid Burke - applied for the position of Director of Nursing in St. Josephs Hospital, Dungarvan.
She was the one of two candidates interviewed for the position. She was unsuccessful in her interview. The successful candidate was male. The complainant appealed the decision of the Interview Board to no avail. The complainant then referred her case to an Equality Officer, claiming that she was discriminated against in contravention of Section 8 and 6 (2)(a) of the Employment Equality Act, 1998.
The Equality Officer investigated the complaint and decided that the South Eastern Health Board did not discriminate against Ms Burke in terms of Section 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.
The complainant appealed that decision.
Grounds of Appeal
The Equality Officer erred in fact and in law when concluding that discrimination did not occur failing to take into account:
- Unfair treatment in the marking of the educational achievements of the complainant compared with the male candidate.
Manipulation of the marks scheme before the interview in a way which clearly favoured the male candidate.
The failure of the respondent to operate open and fair procedures in relation to the competition and, in particular, in relation to the marking system used for core competencies and special competencies.
Ms Burke applied for the advertised position of Director of Nursing at St. Joseph’s Hospital, Dungarvan and was interviewed on the 6th March, 2001. She found the initial atmosphere at the interview uncomfortable for two reasons: the interview started late, and she was addressed by an incorrect name by a panel member who was well known to her. She also alleges that during the interview the Interview Board prevented her from developing a rapport or elaborating her answers in order to demonstrate her skills and capability. Her views on the future development of services for the older people at the hospital, a hospital for the care of the elderly were, she alleged, treated with contempt.
She subsequently received a letter on the 4th of April, 2001, telling her she had been unsuccessful in the competition. She then sought copies of the assessment form used and the markings.
This information was received on the 2nd of May, 2001. Ms. Burke was devastated to find that the marks awarded to her were less than 50% of the total available.
The complainant states that the effect of this decision was that the only other candidate for the job, a male whom she believes holds lesser qualifications and has less experience than her, secured the post.
The complainant alleges that, despite the fact that her experience and qualifications approximated more closely to the requirements of the position as advertised, the marks she received under the heading ‘qualifications and experience’ were less than the successful candidate. She referred to the qualifications and experience as specified in the Advertisement for the position: -
- “Professional Qualification Experience etc: -
Each candidate must: -
(ii) possess such knowledge and experience of hospital administrative routine as would enable him/her to discharge satisfactorily the duties of the office.
(iii) have had satisfactory general nursing experience.
In support of this contention, the complainant further alleges that one of the interview panel, who had previously sat on the interview panel when the complainant had been appointed to the position of Assistant Director of Nursing, had told the complainant that she was eminently qualified for the post of Director when it would arise. The complainant alleges that the marks awarded for both her qualifications and experience do not reflect this view.
The complainant also contends 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 of Nursing posts. (This was documented at the Equality Officer’s hearing and recorded in the Equality Officer's Recommendation).
The Union sought an award of compensation for the discrimination which occurred, and the distress caused.
The Respondent’s case:
The South Eastern Health Board is committed to equal opportunities and denies that it discriminated against Ms. Burke contrary to the provisions of the Employment Equality Act, 1998, and contends that the selection process was conducted without regard to the gender of the candidates.
The Interview Board comprised of two females and one male. Each candidate and each member of the Interview Board was given a copy of the Health Board's Documentation relating to the particulars and qualifications for the post, the job description and the Boards specifications/selection criteria. This information provides a list of characteristics to assist the candidates at the interview. Amongst other factors, it outlined essential and desirable requirements in relation to a number of factors such as qualifications, experience, knowledge and competencies.
The Interview Board deliberated on the marking system, the type of questions to be asked and reviewed the Curriculum Vitae of the candidates on the morning prior to the first interview being held. The Interview Board recorded that Ms. Burke’s interview started at 10:55 a.m. and continued until 11:45, a total of 50 minutes.
The respondent also stated the interview is a standard element of the recruitment and selection process and is used as a tool to examine candidates ability to carry out the duties and tasks of a particular position. The principal 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 they would bring to the position for which they had applied. The interview also provides an opportunity to assess core competencies such as organisational skills etc, which in this particular position were extremely important.
The respondent also referred the Court to the Court’s Determination inDublin Institute of Technology v A Worker DEE-994where in the Court stated
- “It is not the responsibility of the Equality Officer or of the 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.”
In the submissions, and at the hearing, the following facts emerged:
- The South Eastern Health Board does not apply a standard marking system for selection for management positions at this level.
The South Eastern Health Board, rather than use a formal marking procedure, felt it was preferable to allow sufficient flexibility to the Interview Board in order that considerations such as experience would emerge.
The complainant had applied for the Director of Nursing position when it was advertised. She had previously held the position of Assistant Director of Nursing and Acting Director of Nursing, and continued to hold that position after her unsuccessful interview.
Most importantly, the Interview Board met on the morning of the interviews and considered the curriculum vitae of the two applicants. They then devised a marking system as follows:- Education Qualifications 100 marks
Experience 100 marks
Knowledge/Professional Knowledge 100 marks
Core Competencies 400 marks
Special Competencies 400 marks
Total: 1100 marks
- Education Qualifications 100 marks
The correct test for deciding if the burden of proof shifts to the respondents in this case is that formulated by this Court inSouthern Health Board v Dr. Teresa Mitchell.
It is a matter for the complainant to prove on the balance of probabilities the primary facts on which she relies in making her case of discrimination. Then it is for the Court to decide if those facts are of sufficient significance to raise a presumption of discrimination. If the Court is so satisfied, the onus is then shifted to the respondents to prove that there has been no infringement of the principle of equal treatment.
Conclusions:
The Court has given careful consideration to all of the submissions made by the parties and to the evidence adduced at the hearing. The Court accepts that it is not the responsibility of the Equality Officer or of the Court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the gender or marital status of the complainant or the appointee influenced the decision of the Board.
As part of this process, the Court must examine the evidence adduced by the complainant to ensure that the selection process is free from discrimination.
The following facts have been established: -
- The complainant was the acting Director of Nursing and, therefore, could be presumed to have some competency in the position. Nevertheless, the successful candidate obtained substantially higher marks than the complainant for experience in positions, which had no direct relevance to the position being advertised.
- The SEHB did not have a standard marking system for selection of candidates for posts at this level. Furthermore, it was left to the discretion of the interview board to set this structure and its parameters. The Interview Board met on the morning of the interview and, having examined the Curriculum Vitae of the two candidates, then decided on a marking system giving the highest value to core competencies and special competencies.
The level of marks awarded to the complainant was extremely low.
There was undisputed statistical evidence to the effect that senior posts in the nursing profession are male dominated.
- The SEHB did not have a standard marking system for selection of candidates for posts at this level. Furthermore, it was left to the discretion of the interview board to set this structure and its parameters. The Interview Board met on the morning of the interview and, having examined the Curriculum Vitae of the two candidates, then decided on a marking system giving the highest value to core competencies and special competencies.
Taken together, in the view of the Court, these facts are sufficient to raise an inference that the complainant was discriminated against on the grounds of her gender and, accordingly, the burden of proof must switch to the respondents to show, on the balance of probabilities, that they did not discriminate against the complainant on the grounds of her gender at the interview process.
Having carefully assessed the respondents evidence, the Court finds that the respondent did not give a reasonable explanation for the remarkably generous marks awarded to the successful candidate for experience in situations very different to the requirements as specified in the advertisement, and in comparison to the marks awarded to the complainant for her experience in the job itself on an acting basis which approximated more closely to the requirement of the job as advertised.
Both candidates were awarded similar marks for educational qualification, despite the fact that the male candidate was awarded 5 marks for his RPN qualification, which was not an essential or desirable qualification, and the female candidate was not awarded any marks for her third level qualification in Gerontology (Certificate in Psychosocial Nursing Care of the Older Adult).
When commenting on the subject of the core competencies and specific competencies necessary for the position, the Equality Officer stated:
“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 markings to be awarded under the various criteria and this should be done in advance of applications being received for the competition”.
A maximum of 900 marks - 82% - were allocated for “Knowledge/Professional Knowledge, Core Competencies, and Special Competencies”. In the circumstances, the Court would have expected the respondent to be in a position to give a credible explanation for the marks awarded under these headings beyond a mere statement that they represented the subjective assessment of the interview board and “ were granted on the basis of competence evidenced through candidates’ responses to questions”.
This Court has consistently commented on the need for Employers conducting interviews to have openness and transparency in their selection process. See in ParticularGleeson V the Rotunda Hospital DEE 00/3.Where in a case such as this the interview committee met in advance, looked at the two Curriculum Vitae, then decided to set the marking criteria, allocated a substantial number of marks for what can be regarded as the subjective elements of the assessment, and then failed to retain any notes as to how they arrived at that assessment, it would be extremely difficult for them to discharge the onus of proof placed upon them. In this case, the respondent has not discharged that onus.
The Court’s is sustained in this finding by the fact that there is such a substantial statistical imbalance between the number of male and female nurses at entry-level grade and those occupying management positions. It has consistently been held by the European Court of Justice, particularly inR V Secretary of State for Employment ex parte Seymour- Smith 1999 IRLR 253, that statistical anomalies of this type may constitute evidence of apparent sex discrimination unless justified by objective factors unrelated to any discrimination based on sex. No such justification has been advanced by the respondents in this case.
At the close of interview, the complainant, when asked to raise any questions or to add anything not covered by the interview, replied that she had not done a good interview and fairly quickly left the room. The Chairman of the Interview Board referred to the fact that she appeared ill at ease during the interview which, he concluded, was due to her unsatisfactory performance at interview. The Court is of the view that in an interview where such a large percentage of the marks were awarded on “the basis of competency evidenced through candidates’ responses to questions”, that it was particularly remiss of the Board not to respond to this remark at the time.
Both parties described the conduct of the interview and, while the Court accepts the complainant was justifiably upset by the manner of one of the interviewers, the Court accepts that this has more to do with a lack of training in interview techniques than any gender bias.
On the basis of the evidence, and for reasons already referred to, Court is satisfied that the selection process was conducted in a manner which fell short of the standards of objectivity, fairness and good practice that could reasonably be expected in the circumstances.
The Court is thus satisfied that there is, prima facie, a causal connection between the deficiencies identified in the selection process and the result in the case of the candidates for the posts of Director of Nursing.
Accordingly, the respondent not having discharged the onus of proof upon it, the Court overturns the Equality Officer's decision and upholds the appeal.
Determination
The Court finds that the complainant was discriminated against in contravention 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 Director of Nursing. In all the circumstances of this case, the Court awards compensation of €45,000.
The Union’s appeal is allowed and the Equality Officer’s decision is overturned.
The Court so determines
Signed on behalf of the Labour Court
Caroline Jenkinson
12th January, 2004______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.