DEC-E2005-013 Full Case Report

3 Named Male Employees vs An Post (Represented by Ms. Barrington B.L. instructed by An Post Solicitors)

1. DISPUTE
   1. The dispute concerns a claim by Mr. Liam Good, Mr. Conor McNamara and Mr. Richard O’Brien against An Post that they have been discriminated against on the grounds of gender in terms of Sections 6(1), 6(2)(a) and 22 of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when they failed to get promoted to full-time postal sorters in the respondent organisation.
      
2. BACKGROUND
   1. The Portlaoise Mail Centre opened in February, 2000 and by September, 2002 there were some 72 part-time postal sorters employed in the centre. A competition notice issued to these part-time staff for promotion to full-time positions in the Mail Centre. The complainants applied but were unsuccessful in their applications. They allege that they were discriminated against on the grounds of gender. The respondent denies the allegations.
   2. Consequently the complainants, through their Union, referred complaints to the Director of Equality Investigations on 25th February, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the cases to Gerardine Coyle, Equality Officer on 16th September, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. At the request of the Union the investigation of these claims was put on hold pending the outcome of talks between the parties. When the Union requested that the investigation be proceeded with submissions were received from both parties and a joint hearing of these claims took place on 15th February, 2005. Just prior to the hearing of these claims the Union withdrew it representation to the complainants.
      
3. SUMMARY OF THE UNION’S SUBMISSION ON BEHALF OF THE COMPLAINANTS
   1. It is the Union’s contention that the three complainants were discriminated against by the respondent on the grounds of gender contrary to the provisions of sections 6(1) and 6(2)(a) of the Employment Equality Act, 1998. The Union says that on 17th November, 2002 the results of a competition for 17 full-time postal sorters were announced. Fourteen out of fifteen female candidates were successful and only three out of twelve male candidates obtained a full-time position. According to the Union this shows a significant gender imbalance in the success rate.
   2. The Union notes that the decision was made by an all male interview panel and at the time of the competition the respondent had no equality policy.
      
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
   1. The respondent states that on 13th September, 2002 it announced a promotion competition for part-time postal sorters to full time positions in the Mail Centre in Portlaoise. According to the respondent 13 vacancies were to be filled immediately and any vacancies arising because of other competitions in Portlaoise and in the Athlone Mail Centres were to be filled from the same competition. In total 18 vacancies were to be filled from the competition. Technically delivery post persons in Portlaoise Delivery Office were eligible to apply for the competition but none did. Any person wishing to be appointed had to apply and the selection was by way of interview and a consideration of sick absence and disciplinary record.
   2. According to the respondent there were 30 applicants namely 13 males and 17 females. Two male applicants withdrew prior to interview and the remaining 28 applicants (11 males and 17 females) were invited for interview. The respondent states that in order to be considered suitable for appointment a candidate had to score not less than 20 marks at interview and only one female candidate failed to achieve this standard. According to the respondent 4 candidates (3 male and 1 female) were interviewed on the basis that their sick absence records were unsatisfactory but that they were appealing to the Chief Medical Officer to allow them to be considered for appointment. The interviews were completed in early November, 2002 and the candidates were listed in order of merit based on performance at interview. Job offers were issued in mid-November but none of the complainants were offered a job at this time. The respondent notes that the 3 male applicants and the 1 female applicant did not succeed in persuading the Chief Medical Officer to allow them to be considered for appointment and accordingly were not eligible to be offered positions even though they had performed well at interview. According to the respondent a further position became vacant subsequently and was offered to and accepted by one of the complainants namely Mr. Flannery. It is the respondent’s submission that the outcome of the procedure was that from a pool of 72 part-time Postal Sorters of whom 22% were male and 78% were female a total of 18 full-time postal sorters were promoted, 4 of whom were male and 14 were female.
   3. It is the respondent’s contention that the competition was conducted fairly. Qualifying criteria regarding a satisfactory disciplinary record and a satisfactory sick absence record are objectively justified and the respondent submits are not discriminatory on the grounds of gender. According to the respondent the interviews were competency based and each candidate was afforded an opportunity to demonstrate by providing practical examples his/her aptitude for the work. The interviewers had been provided with an interview briefing document and the respondent states that the interviews of the four complainants were conducted in accordance with the interview briefing document.
   4. The respondent states that two male interviewers conducted the interview and both had received training which included a module on equality. Furthermore the interviewers had received a briefing pack which also included a reminder of the obligations under the Employment Equality Act, 1998. Contrary to the submission of the Union the respondent states that it did have a policy for the promotion of employment equality and equality of opportunity in place at the time of the interviews.
   5. It is the respondent’s submission that there was no direct or indirect discrimination on grounds of gender against the complainants. The respondent states that all of the conditions which an employee had to comply with in order to obtain a full-time position arising from this competition are objectively justified. The relevant conditions comprised:
      • Application in writing
      • Satisfactory sick absence record
      • Satisfactory discipline record
      • Obtaining sufficient number of marks at interview
      • Obtaining more marks in interview than others
      
      The respondent submits that the interviews were conducted in an objective manner and the outcome was objectively justified.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. The issue for decision in these claims is whether or not the complainants have been discriminated against on the grounds of gender in terms of Sections 6 and 22 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act by the respondent when they were not appointed to full-time postal sorter positions in the respondent organisation. In making my decision in these claims I have taken into account all of the information, both written and oral, made to me by the parties.
   2. The complainants applied for the full-time postal sorter positions. A total of 30 persons applied of whom 13 were male and 17 were female. Before the interviews 2 male applicants withdrew their applications, hence 28 applicants (11 males and 17 females) were interviewed for these positions. Following the interviews a panel of applicants deemed suitable for appointment to full-time postal sorter positions was drawn up. There were 13 vacancies to be filled immediately and a total of 18 vacancies filled through this competition. 3 males and 1 female who were deemed suitable for the full-time postal sorter position were not appointed because of their sick leave absence. Of the 18 persons appointed through this competition I note that 14 were female and 4 were male.
   3. At the hearing of these claims the complainants made the following additional arguments:
      Mr. Good – According to Mr. Good one of the successful female applicants had no prior experience of performing work in the letter sorting area in Portlaoise whereas he had previously worked in this area. Mr. Good alleged that his performance was as good if not better than the performance of the other candidates. It was also Mr.Good’s submission that he was told by the interviewers that this was not an interview but an informal chat whereas all of the female candidates were clearly told that it was a formal interview. Mr. Good said that he found this disconcerting.
      
      Mr. McNamara – According to Mr. McNamara there were 12 males and 1 female full-time staff in the respondent organisation in Portlaoise in 2000. A promotion competition was held in 2002 and 4 people were promoted namely 1 male and 3 females. It was Mr. McNamara’s contention that the purpose of this competition was to increase the ratio of females in full-time positions. Mr. McNamara stated that he had a difficulty with the notes made by the interviewers in relation to Teamworking/Flexibility and the poor performer comment. While he may have “gone over the top a bit” in relation to his comments on his work in the manual packets area he considered a score of 2 to be very low in the context of a score of 3 for manual dexterity where the comment was made that he was below average.
      
      Mr. O’Brien – According to Mr. O’Brien he felt from the start that he had been unsuccessful in this competition because he was told that there would be further vacancies coming up in March and he might be successful then. Mr. O’Brien stated that he contested the comments made by the interviewers in relation to manual dexterity. He denied that he had a good knowledge of Excel and that he had ECDL. Mr. O’Brien also denied that he used the word boredom during the course of his interview or that he made the comments attributed to him about females.
   4. During the course of the investigation of this claim the respondent provided me with an interview briefing document designed specifically for Postal Sorters which had as its objective to
      “identify, through a structured interview process, those applicants who most clearly meet the stated requirements of the position as advertised and who are otherwise deemed suitable for appointment”.
      
      The document sets out the procedure for conducting interviews covering the following:
      • Introduction of candidates to interview board members
      • Give candidates an outline of the interview format (examples given)
      • Introductory questions (examples given)
      • Structured questions – using structured questions look for evidence from the candidate under the following headings:
        • Work organisation
        • Communication skills
        • Teamwork and flexibility
        • Reliability and honesty
      • Question candidate and assess his/her:
        • Manual dexterity
        • Health and safety awareness
        • General suitability
        • Availability
      • At the end of the interview ask the candidate if he/she would like to add to what they have already said which might have a bearing on his/her candidacy
      • Ask the candidate if he/she has any questions
      • Inform the candidate as to the next step in the selection procedure and thank the candidate for attending
      • Use the score sheet to assign a score under each heading based on objective evidence taken from the application documentation
      • Total the score for each heading to produce a total score
      • Rank the applicants in order of Total Score obtained
        
        There is set out in the document details of the scoring system to be used, the purpose and nature of probing questions, time management, note taking, merits of seeking examples and the use of information on application forms. The document further details each competency e.g. work organisation and sets out in detail the type of questions which should be asked of a candidate. It also gives an indication of the marks that should be awarded to candidates based on the answers to the questions asked.
   5. The respondent also provided me with a copy of the notes made by the interviewers at the interviews of each of the three complainants. It is clear that the interviewers followed the format as set out in the Interview Briefing Document. In terms of the heading ‘General Suitability’ it is very clear from the interviewers’ notes why the complainants were not deemed suitable for the promotion and had been marked down under the various criteria.
   6. One of the complainants has indicated that he considered that he was better suited to the promoted position to one of the successful female applicants on the basis that she had no experience working in the letter sorting area in Portlaoise. According to the respondent this particular candidate had 15 years service with the respondent organisation and had worked as a post person in two different Mail Centres in Dublin where she had a proven track record. The respondent states that this candidate undertook a similar job to that which was being undertaken in Portlaoise. As the interviews were competency based I am satisfied that this female candidate had to show that she possessed the required competencies to enable her to be deemed successful in this interview. Two of the complainants criticised the comments made by the interviewers in relation to particular criteria. I accept that the comments made by the interviewers were accurate given that they were made at the time of interview or immediately after the interview. There were criticisms of some of the markings awarded by the interviewers but I am satisfied that the interviewers awarded marks in accordance with very clear guidelines. Overall I am satisfied that the complainants have not established a prima facie claim of direct discrimination by the respondent.
   7. I note that the complainants have argued that a higher proportion of female to male applicants were successful in this competition. Based on the statistics provided by the respondent I note that a total of 72 persons (16 males and 56 females) were eligible to apply for these full-time positions. A total of 18 persons were promoted from this competition of whom 4 were male and 14 were female. A further 3 males and 1 female had been deemed eligible for promotion pending an appeal of their sick leave record and had they being successful in that appeal they would have been promoted. One of the complainants contended that the interviewers were attempting to increase the ratio of females in full-time positions. There is no evidence before me that this was the case. On the basis of the above statistics I find that the complainants have failed to establish a prima facie case of indirect discrimination on the grounds of gender.
   8. In claims related to interview competitions it is often the case that Equality Officers and indeed the Labour Court are critical of the lack and incompleteness of procedures adopted by respondent organisations. In these claims I find that the respondent had very clear procedures in place in relation to conducting competency based interviews. These procedures were followed meticulously, clear interview notes were maintained and after each interview the candidate was marked in accordance with clear guidelines. The criteria adopted by the interview board were objective and it was clear from the interview notes what was meant by the term “suitability” which is often not the case.
      
6. DECISION
   1. In view of the foregoing I find that An Post did not directly or indirectly discriminate against Mr. Good, Mr. McNamara and Mr. O’Brien on the ground of their gender in relation to the promotion competition to full-time postal sorters. I find that the complainants failed to establish prima facie claims of discrimination.
      

Gerardine Coyle
Equality Officer

1st March, 2005