DEC-E2005-052 Full Case Report

ALDERDYCE (REPRESENTED BY IMPACT) AND DONEGAL COUNTY COUNCIL

1. DISPUTE

This dispute involves a claim by Ms. Alderdyce that she was discriminated against by Donegal County Council on grounds of gender and race in terms of section 6(2) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act on a sustained basis for a number of years prior to June, 2002.

2. BACKGROUND
2.1 The complainant is a UKcitizen and commenced employment with the respondent in January, 1996. She contends that she has been subjected to less favourable treatment by the respondent on a sustained basis from then onwards in terms of promotion and work related training opportunities on grounds of her gender and race. She had originally referred her complaint on the ground of marital status and had also referred a claim for equal pay, but withdrew both elements. The respondent rejects the allegations.

2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on4 December, 2002. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. Written submissions were received from both parties and a Hearing of the complaint took place on 30 June, 2004. A number of issues emerged at the hearing which gave rise to further correspondence with the parties subsequent to the hearing. This process concluded on 6 June, 2005.

3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant is a UKcitizen and commenced employment with the respondent as an Assistant Staff Officer (Grade IV) in January, 1996. She contends that this post had previously enjoyed Staff Officer (Grade V) status and her immediate predecessor was male. She contends that this constitutes less favourable treatment of her on grounds of gender contrary to the Act and contends that it is the first of a series of sustained incidents of discriminatory treatment of her.

3.2 The complainant states that she has competed for promotion within Donegal County Council on seven separate occasions between March, 1998 and June, 2002 and was unsuccessful six times. On the other occasion (December, 2001) she was successful and was promoted to Grade V but argues that her placement on the Panel following interview (7th) was totally inappropriate and contends that had she been from the Republic of Ireland she would have been given a more favourable position. The complainant states that she competed for promotion during the aforementioned period as follows:

She contends that in each of the six competitions where she was unsuccessful she had superior qualifications and greater experience than those candidates that were placed on the Panel. The complainant acknowledges that each of the competitions were separate and that all but the competition in June, 2002 occurred outside of the six month time limit within which complaints of discrimination must be referred in accordance with section 77(5) of the Employment Equality Act, 1998. She submits however, that all the alleged actions are connected and that they form a consistent pattern of discriminatory behaviour by the respondent which was present in all of the selection processes. She argues therefore that she may seek a remedy in respect of those competitions on the basis of the last alleged act of discrimination - the 6 June, 2002incident, which is within six months of the date on which she referred her complaint.

3.3 The complainant states that candidates for the Grade VII (Administrative Officer) competition in June, 2002 were assessed across the criteria tabled below and she received the marks indicated across those categories –

The complainant states that a qualifying mark of 50% under each competency was required. Almost 30% of the total marks (200) were assigned to “General Management”. She did not attain the necessary qualifying mark under this category and claims that no opportunity was afforded her by the Interview Panel to demonstrate or elaborate upon her experience in this area which she had gained in theUKand which she contends was evident from her CV. She further argues that that there are inconsistencies in the marks under the “General Management” and “Experience” categories awarded to her and two of the successful candidates (Mr. A and Ms. B both of whom are from the Republic of Ireland) when compared to the marks awarded to those same candidates across the same competencies during the selection process to Grade VII held in November, 2001.

3.4 The complainant argues that it is difficult to reconcile the line of questioning pursued by the Interview Panel in an effort to assess her across the competencies mentioned above during the interview in June, 2002. In particular she asserts that she was precluded from referring to her relevant experience and expertise acquired outside her employment with the respondent – when she worked in the UK. She contends that this was not the case with candidates from the Republic of Ireland. In support of this she furnished her account of the interview which she prepared immediately afterward. She further argues that the process itself is flawed in that (i) the evaluation criteria and weighting of same bear little resemblance to the job specification, (ii) the criteria are set by the Interview Panel just before interviews commence and with sight of the candidates’ application forms – this process permits a significant degree of subjectivity and creates an environment in which discrimination can exist, (iii) it is unclear the level of interview techniques training provided to, or completed by the members of the Interview Panel and (iv) there are no notes of the interview which indicate the basis upon which the Interview Panel made its decision. The complainant submits that the foregoing, when taken with the complainant’s nationality are sufficient to establish a prima facie case of discrimination and that the respondent has failed to rebut same.

3.5 The complainant states that in early September, 2001 she became aware that a colleague (who is a Republic of Irelandnational) was attending a seminar/conference which was also of relevance to her area of work. When she applied to attend the course she was advised by her Line Manager that her application was rejected, ostensibly on the basis that a previous participant on a similar course had “not rated” it. The complainant contends however that the refusal to allow her to attend the seminar constitutes less favourably treatment of her on grounds of race.

4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertion that she was discriminated against on grounds of race or gender contrary to the Employment Equality Act, 1998. As regards the complainant’s assertion that she was discriminated against on grounds of gender on her initial appointment to the Council the respondent states, whilst accepting that her predecessor was male, that there was a revision of the staffing structure within the Housing Section at that time and the complainant did not assume the duties which had previously been performed by her predecessor.

4.2 The respondent argues that each of the seven competitions mentioned by the complainant were separate and were for a variety of positions in the Council over a number of years. It adds that different personnel served on the Interview Panels, that they received relevant training, that the candidates were assessed across pre-determined criteria, that performance at interview was the sole factor determining the success of a candidate in a competition and that the complainant had failed to convince the Panel of her suitability on the day. It rejects the complainant’s assertion of a sustained campaign of discriminatory treatment of her because she was a UK citizen and submits that it is not a credible proposition as it would require senior staff in the Council and the members of several Interview Panels to conspire to do her down. Notwithstanding this the respondent further argues that the only alleged incident which the Equality Officer has jurisdiction to investigate is the June, 2002 one as all the others fall outside the time limit provided at section 77(5) of the Act.

4.3 The respondent accepts that there are differences in the marks awarded to the complainant and three of her colleagues in the June, 2002 competition for Grade VII under the categories of “Experience” and General Management”  relative to marks awarded to them under the same headings in respect of a similar competition seven months earlier. It states that in the period between the two competitions the successful candidates gained very relevant experience – Mr. A was Acting Town Clerk and the other two candidates had been involved with the introduction and roll-out of a new Financial Management System and submits that this additional relevant experience was reflected in the marks awarded to those candidates.

4.4 The respondent rejects the complainant’s assertion that she was treated less favourably on grounds of race in respect of its failure to approve her attendance at a seminar/conference in September, 2001. It states that the complainant’s Line Manager decided, having regard to the nature of the work performed by her and a colleague, that the content of the programme was more relevant to her colleague and her attendance was approved and that this function is a matter for management to exercise. The respondent adds that if the circumstances as outlined by the complainant were true, the fact that another member of staff had attended a previous course and found it to be not particularly beneficial is a legitimate, non-discriminatory reason for not approving her attendance on a subsequent course.

5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not Ms. Alderdyce was discriminated against by Donegal County Council on grounds of gender and race in terms of section 6(2) of the Employment Equality Act, 1998 and in contravention of section 8 and of that Act on a continuous and sustained basis for a number of years prior to June, 2002. In reaching my decision I have taken into account all submission, both oral and written, made to me by the parties.

5.2 Section 6 of the Act provides that discrimination will be taken to have occurred “where on any of the…. ‘discriminatory grounds’ one person is treated less favourably than another is, has been ….” . The same section also defines the ground of race as between any two persons “that they are of different race, colour, nationality or ethnic or national origins”. Section 8 of the Act provides that:

            “(1)      In relation to—

                        (a) access to employment,

                        (b) conditions of employment,

                        (c) training or experience for or in relation to employment,

                        (d) promotion or re-grading, or

                        (e) classification of posts,

                        an employer shall not discriminate against an employee or prospective                                       employee…”

5.3 It is the established practice of this Tribunal and the Labour Court to apply a procedural rule concerning the burden of proof in non-gender claims of discrimination similar to that applied in gender based discrimination claims¹ and I propose to follow that approach in the instant case. This requires the complainant to establish, in the first instance, facts from which it can be inferred that she was treated less favourably on grounds cited. It is only when the complainant has discharged that obligation to the satisfaction of the Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

5.4  The complainant asserts that the respondent treated her less favourably than her colleagues from the moment she commenced employment in January, 1996 by assigning her to a post that had previously been occupied by a male at a higher grade. I consider this to be a stand alone incident on grounds of gender and as it was not referred to this Tribunal within the time limit prescribed in section 77(5) of the Employment Equality Acts, 1998-2004 it is not properly before me and will not therefore form part of my investigation of the complaint.

5.5  All bar one of the remaining alleged incidents concern the complainant’s failure to secure promotion, or in one instance her failure to be placed higher than 7th on a promotion panel following interview, on seven separate occasions between May 1998 and June, 2002. All are grounded on the fact that she was a UK citizen and the alleged treatment of her constitutes discrimination of her on grounds of race. The first instance cited by the complainant occurred in May, 1998 and predates the coming into force of the Employment Equality Act, 1998. Consequently, any alleged treatment of the complainant on this occasion cannot constitute unlawful discrimination of the complainant on the ground cited and does not form part of my investigation of the complaint. Of the remaining six alleged incidents all but one of them occurred outside of the six month time limit prescribed in section 77(5) of the Act. I note the complainant’s comment at the hearing that the first time she formed the opinion she was treated less favourably by the respondent because she was a UK citizen was after she was unsuccessful for the Acting Grade V post in May, 2001 and that she considered her nationality a factor which was used by the respondent to treat her less favourably in the subsequent competitions. In my view it was open to the complainant to refer a complaint to this Tribunal after that competition and for that matter following each of the subsequent competitions and she decided not to do so. I have examined the composition of the six Interview Panels in respect of the competitions between May, 2001 and June, 2002 and there are only four people who served on two Interview Panels – only one of whom is an employee of the respondent. The remainder of the Panel members are from other local authorities, several of them at senior management levels. Having regard to the totality of the evidence submitted on this point I cannot accept that the competitions form a chain of discriminatory events/practices operated by the respondent from May, 2001 – June, 2002. The complainant referred her complaint to the Tribunal on 4 December, 2004. The only competition which occurred within six months of that date was the one for appointment to Grade VII (June, 2002). Consequently, my investigation will only cover that competition.

5.6  The complainant’s representative submitted a job specification for Grade VII posts within the Council and the respondent accepts the accuracy of this document. Having examined the complainant’s CV which was submitted for the June, 2002 competition I am satisfied, on balance, that it indicates she possessed experience which is consistent with and relevant to the job specification. I also note that she competed for a similar post in November, 2001 and received 70 marks under the category “Experience” whereas she received 80 marks under this category in the June competition. This compares with increases of 20-30 marks for two of the successful candidates following the 2002 interviews over the same competitions. In addition, the complainant received 40% of the available marks in November, 2001 under the category “General Management”. In the June competition she received 45% of the available mark under that category whereas the two aforementioned candidates were awarded 60% and 55% respectively of the marks available, in the case of Mr. A - this represents a doubling of his score over the 2001 competition.

5.7  The complainant contends - and on the basis of her evidence at the hearing and the contents of her detailed notes of the interview which she prepared shortly afterward I accept her contention – that in the course of the interview she was asked only one question which could be considered relevant to determining her suitability under that category. I agree with the respondent’s point that the complainant’s CV does not clearly state her experience in the UKinvolved staff management. However, in my view it does indicate experience of managing projects and resources. The respondent acknowledged in the course of the hearing that staff management issues only become a feature of roles within the Council from Grade VIII onwards and that managerial responsibilities also include project management and resource management. These issues were not explored with the complainant at interview – experiences which were largely obtained during her employment in theUK. It is noted that almost 30% (200) of the total marks available at interview were assigned to this category. The failure of the Panel to explore these issues with the complainant, bearing in mind the respondent’s comment that the sole factor determining success in the competition was performance at interview, clearly placed her in a disadvantaged position. Finally, it is noted that the complainant is the only UK national who interviewed for the post. Having regard to my comments in this and the preceding paragraph I find that the complainant has established a prima facie case of discrimination on grounds of race and the burden now shifts to the respondent to furnish evidence to the contrary.

5.8 I am satisfied that the respondent convened the Interview Panel in accordance with established practice. However, it is not able to confirm that the Panel members received any specific training on interview techniques/practices although it did confirm they received a booklet entitled “Guidance Notes for Members of Interview Boards”. The respondent is unable to satisfy me that the criteria for the post was agreed by the Panel Members in advance of perusing the candidates’ applications and CV’s as required by this booklet. It is also unable to furnish a satisfactory explanation as to how the criteria across which the candidates were assessed dovetail with the job specification for a Grade VII post and why they were weighted against each other in the manner they were. These factors clearly create an environment which permits a high level of subjectivity by the Panel Members and consequently an opportunity in which discrimination can exist. The respondent was also unable to furnish any notes taken at interview which demonstrate how the Panel came to the conclusions it did. The failure to make and retain such information has been considered as fatal to an employer in its effort to rebut an inference of discrimination by this Tribunal and the Labour Court on many occasions in the past. In the instant case this lacuna means the respondent is unable to prove that the interview process was conducted in an objective and transparent manner. In light of the foregoing I am not satisfied that the respondent has discharged the burden of proof required of it and consequently I find that it discriminated against Ms. Alderdyce on grounds of race contrary to the Employment Equality Acts, 1998-2004. Finally, in the interests of completeness I find that I do not have jurisdiction, by virtue of the time limit provided at section 77(5) of the Acts, to investigate the complainant’s allegation of discriminatory treatment as regards training opportunities.

6. DECISION OF THE EQUALITY OFFICER

I find that Donegal County Council discriminated against Ms. Alderdyce on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts. I note that the difference in overall marks awarded at the June, 2002 interview between the complainant and the candidate placed last on the panel was sixty marks. In the circumstances I consider that the appropriate redress is an award of compensation. I therefore order, in accordance with section 82 of the Employment Equality Acts, 1998-2004 that the respondent  pay the complaint  €20,000 by way of compensation for the distress suffered by her as a result of the discrimination. This award does not contain any element in respect of loss of income on the part of the complainant.

_____________________________________
Vivian Jackson
Equality Officer
25 October, 2005

¹Citibank v Masinde Ntoko EED045 of 8 March, 2004 and Icon Clinical Research v Djemma Tsourova    ED/04/2