HEALY AND SLIGO COUNTY COUNCIL
1. DISPUTE
This dispute involves a claim by Ms. Annette Healy that she was discriminated against by Sligo County Council on grounds of gender, within the meaning of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act, in respect of appointment to the post of Retained Firefighter at Ballymote Fire Service, following interview in April, 2001.
2. BACKGROUND
2.1 The complainant attended for interview for the position of Retained Firefighter with Sligo County Council (Ballymote Fire Service) in April, 2001. On 3 August, 2001 she was informed by the respondent that she was unsuccessful. She was subsequently contacted by the respondent and informed that she was placed second on a panel for appointment and was asked to attend induction training. The complainant satisfactorily completed this training and the necessary medical examinations. The candidate placed first on the panel (Mr. A) did not complete the necessary training and he was not appointed to the post. The complainant was not appointed either and claims that the Council discriminated against her on grounds of gender when it failed to appoint her to the post in circumstances where Mr. A was unable to fulfil the requirements of the post and she was the next suitable candidate. The respondent rejects the complainant's assertion.
2.2 The complainant referred a complaint to the Equality Tribunal on 14 February, 2003. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer on 16 September, 2003 for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received from both parties and a hearing took place on 17 February, 2004. A number of issues emerged at the hearing which required further clarification and gave rise to correspondence subsequent to the hearing. The Equality Officer received the final piece of information from the parties in respect of the complaint on 23 July, 2004.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant responded to a newspaper advertisement for the post of Retained Firefighter with Sligo County Council (Ballymote Fire Service) and attended for interview in April, 2001. The respondent informed the complainant by letter dated 3 August, 2001 that she was unsuccessful. Shortly afterwards she was contacted by an official from the Council was informed that she had been placed second on a panel for appointment and was asked to complete the necessary two week Recruit Induction Training. She commenced this training at Sligo Fire Station on 27 August, 2001 and completed it successfully. Some weeks later she attended for and satisfactorily completed the necessary medical examination. The complainant states that she heard nothing more from the respondent and a couple of months later she telephoned the Council to enquire about the situation - she was aware that a serving member of Ballymote Fire Service was due to retire and she believed she would be appointed to the post. She states she was informed by the respondent that as she was second on the panel and could expect to be appointed to the post if Mr. A turned down the post or did not fulfil the training requirements etc. Despite a number of further enquiries by the complainant she was never appointed to the post. The complainant states that Mr. A never completed the necessary Induction Training and therefore she should have been offered the post. She contends that the respondent afforded him an excessive degree of latitude (sixteen months) before it decided not to proceed with his appointment. She submits that this behaviour and the failure of the respondent to appoint her to the post at all, constitutes discrimination of her on grounds of gender contrary to the Employment Equality Act, 1998.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that it conducted interviews in April, 2001 for posts of Retained Firefighter at a number of locations in County Sligo, including Ballymote Fire Service. At that time there was only one vacancy at Ballymote (as a result of a member being absent on long-term sick leave). On foot of the interviews the Interview Board qualified a number of candidates in Order of Merit and the complainant was placed second on the panel. The respondent states that it was its intention to offer the post to the first placed candidate on the panel (Mr. A) subject to him completing the necessary Recruit Induction Training and satisfying the medical requirements. The respondent adds that it wrote to him on 3 July, 2001 and 19 July, 2001 setting out this position and requesting him to make the appropriate arrangements for the medical examination. It adds that on 3 August, 2001 it wrote to the complainant advising her that she was unsuccessful.
4.2 The respondent states that the Assistant Chief Fire Officer wrote to the Council's Personnel Officer on 3 August, 2001 requesting that a second person from the panel be trained for Ballymote Fire Service and that this person be held on the panel for a period of two years in the event that a further vacancy arose. On foot of this request the respondent wrote to the complainant on 10 August, 2001 asking her to make contact with an official in its Human Resources Division. When the complainant contacted the Council she was advised of the position and on 20 August, 2001 the Council wrote to her advising her that there was no vacancy at present, informing her that she would be required to attend and complete the Recruit Induction Training and requesting her to make arrangements for the medical examination. The respondent accepts that the complainant commenced the training on 27 August, 2001 (at short notice) and satisfactorily completed it. It states that a place on this course was offered to Mr. A but he was unable to take up the offer due to work commitments. It adds that it was subsequently unable to source an alternative Training Course within the next number of months as they are only held occasionally and when demand exists.
4.3 The respondent states that the immediate pressure to fill the vacancy at Ballymote Fire Service eased when the member of long-term sick leave returned to duty on 18 February, 2002 and the matter only resurfaced with the retirement of another Retained Firefighter in June of that year. The respondent states that the Chief Fire Officer contacted Mr. A in July, 2002 and was advised that he was still interested in the post. However, the respondent was unable to source the necessary training course (it stresses that the onus is on the respondent to source the appropriate training and give participants adequate notice) and the earliest course available was due to take place at Bray Fire Station in November, 2002. It adds that it wrote to Mr. A on 2 October, 2002 requesting him to attend this course and advising that if he was unable to attend it would withdraw the offer of employment and move on to the next person on the panel. The respondent states that Mr. A did not complete the course and consequently it did not proceed with recruiting him. It adds however, that at this stage it was facing budgetary difficulties and the County Manager decided that recruitment would have to be viewed in light of the financial situation. Other mechanisms for filling vacancies would have to be explored and staff replacement would only be approved in exceptional circumstances. In support of this the respondent furnished the Equality Officer with minutes of Senior Management Team Meetings in the Council around that time, details of posts right across the Council which were not filled and copies of the Revenue/Income for the financial year. It argues therefore that the decision not to fill the vacancy for Retained Firefighter at Ballymote Fire Service was based on factors unconnected with the gender of the complainant and she was therefore not discriminated against contrary to the Act.
5. CONCLUSIONS OF THE EQUALITY OFFICER.
5.1 The matter for consideration by me is whether or not Sligo County Council discriminated against Ms. Healy on grounds of gender in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act, in respect of appointment to the post of Retained Firefighter at Ballymote Fire Service following interview in April, 2001, her satisfactory completion of the necessary training and fulfilment of the required medical standards. In reaching my decisions I have taken into account all of the submissions, both oral and written, made to me by the parties.
5.2 The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 20011 places the onus on a complainant to present, in the first instance, facts from which it may be presumed that discrimination took place. It is only when a complainant has established such a prima facie case that the burden shifts to the respondent to rebut the inference of discrimination raised. 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 the discrimination has probably occurred."2
5.3 It is common case that the complainant was notified in the first instance she was unsuccessful and that she was subsequently contacted by the respondent, informed she was second on a panel, requested to complete the necessary induction training (which she did by early September) and undergo the necessary medical examination (which she did within a number of weeks of completing the training). It is also common case that Mr. A had not completed the necessary training at this time. I note the respondents letters of 19 July, 2001 (to Mr. A) and 20 August, 2001 (to the complainant) which are similar in content but contain one fundamental difference - the letter to Mr. A is essentially an offer of employment subject to certain conditions, whereas the letter to the complainant clearly states that there is no position for her at present but that the Council is anxious to have her complete the necessary training so that she will be suitable for appointment at short notice in the event a future vacancy arises. I am satisfied that the respondent's original intention was to fill only one position in Ballymote and that its request to the complainant to complete the necessary induction training arose as a consequence of the Assistant Chief Fire Officer's request (on 3 August, 2001) to have a second person trained and placed on the panel for a maximum of two years.
5.4 I note the respondent's comments that the obligation rests with it to source the necessary training course, that Mr. A was unable to attend the same course as the complainant in August, 2001 due to work commitments and the short period of notice and I am satisfied, on balance, that this was the case. I also note its comment that it was subsequently unable to source an alternative training course for Mr. A until November, 2002 as the courses are only held occasionally and when demand exists. The respondent was unable however, to furnish any details of the efforts it made to secure such a training course in that fifteen month period and I am inclined to the view that little or no attempt was made by it in this regard during the period in question. However, I do not believe that the respondent's failure to source a suitable training course is of itself evidence of discriminatory behaviour on its part. In addition, I believe that the return of the firefighter from long-term sick leave in February, 2002 and the general level of activity and confusion surrounding implementation of "Better Local Government" during the period may have contributed to the respondent's lack of action in respect of this issue. Whilst the respondent's behaviour could not be regarded as ideal or best practice in the area of human resource management, I cannot conclude, on the basis of the evidence before me, that it constitutes less favourable treatment of Ms. Healy contrary to the Employment Equality Act, 1998.
5.5 The respondent states that the vacancy became an issue again in June, 2002 following the retirement of a firefighter at Ballymote. However, the earliest dates on which the necessary training could be sourced was 11 November, 2002 and the respondent wrote to Mr. A on 2 October, 2002 informing him that if he did not attend and complete the course, its offer of employment (originally issued on 19 July, 2001) would be withdrawn and the respondent would proceed to offer the post to the next person (the complainant). I am satisfied therefore that at that time it was the respondent's intention to fill only one post with one or other of the candidates. The respondent contends that by this stage (October, 2002) it was facing budgetary difficulties and it had to take certain actions, which included a critical review of staffing levels, to remain within budget. I have examined the documentation submitted by the respondent in support of its contention and note that over twenty vacancies across professional, technical and administrative grades in the Council remained unfilled during that period. This figure included, in addition to the Retained Firefighter post at Ballymote, six other posts at various grades in County Sligo Fire Service. I have also examined minutes of a number of Senior Management Team Meetings of the Council from October, 2002 to January, 2003 and I am satisfied that its decision to restrict recruitment of staff at the time was premised on a need to remain within budget for the year - a target which it failed to achieve - and it was eventually required in (January, 2003) to a impose a staff recruitment embargo. I am of the view therefore that the respondent's decision not to recruit the complainant was based on factors unconnected with her gender. In light of this and my comments in the preceding paragraph I find that the complainant has failed to discharge the initial burden required of her to establish a prima facie case and her claim cannot therefore succeed.
6. DECISION OF THE EQUALITY OFFICER
I find that the complainant has failed to establish a prima facie case of discrimination on grounds of gender contrary to the Employment Equality Act, 1998 and her claim therefore fails.
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Vivian Jackson
Equality Officer
11 October, 2004
1 S.I. 337 of 2001
2 Gibney v Dublin Corporation EE5/1996