DEC-E2005-044 Full Case Report

O'Mahony (Represented by the Civil & Public Services Union) v Offices of the Houses of the Oireachtas

1. DISPUTE

1.1 This dispute concerns a claim by Ms Breda O'Mahony that she was discriminated against by the Offices of the Houses of the Oireachtas on the grounds of age, family status and gender contrary to the provisions of the Employment Equality Acts 1998 - 2004 when she was unsuccessful in a promotion competition.

1.2 The complainant referred a claim to the Director of Equality Investigations on 13 June 2002 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 9 September 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Several submissions were received from both parties and a joint hearing was arranged for 10 March 2004. By letter dated 27 February 2004, the Civil and Public Services Union (CPSU) advised that it would be representing the complainant, and asked that the hearing be postponed to allow it to forward a submission. The joint hearing was ultimately held on 9 December 2004.

2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant was employed as a Clerical Officer (CO) by the respondent, and in April 2002 she applied for promotion to the grade of Junior Clerk. She said that, despite an excellent interview performance, she was not placed on the panel of successful applicants. She said she believed that this was because she had been considered as less than "a full time" or "fully committed" member of staff, and she was therefore not valued as highly as other candidates of lesser ability and experience.

2.2 The complainant claimed that she had been wrongly denied career progression because of discrimination on the grounds of gender and/or family status (she was a mother availing of family-friendly work arrangements) and/or age (she was 39 years of age). The complainant asserted that she had been discriminated against on each of these grounds but that, crucially, the combined effect of the three factors had compounded the discrimination. In other words, she said that the combined effect of being female, availing of family-friendly or work-sharing schemes and having reached a certain age, was such that she had been marginalised and unfairly treated in terms of career progression.

2.3 The complainant said that it had been independently established that there is a general climate of bias within the Civil Service against (a) women and (b) job sharers or those availing of family friendly working arrangements. In this regard she cited the publication Gender Equality in the Civil Service (Humphreys, Drew and Murphy, IPA, 1999). She said that the respondent had not developed a pro-active culture of protection against discrimination, despite Government directives. On the contrary, she said, there was evidence that a culture of discrimination existed. As an example, she referred to what she called a "recent act of blatant discrimination" when she and other COs availing of family-friendly work arrangements were not placed on a reserve panel for overtime.

2.4 The complainant alleged that an objective analysis would show that the system was biased against mature females with childcare responsibilities. She said that no such female was placed on the most recent Junior Clerk panel. In this regard, the complainant submitted the following information regarding the applicants for the 2002 competition:

The complainant also said that there was considerable anecdotal evidence that suggested that some female COs simply did not put themselves forward for promotion on the basis of previous experience and their expectations that younger, more flexible staff would be selected.

2.5 The complainant alleged that the nature of the work of the Houses of the Oireachtas was such that availability to work long hours or late at night was valued highly. She said this resulted in an incentive to ensure those promoted to Junior Clerk were available outside standard hours. She claimed that there was a bias in the system against her because she was not so available. She further alleged that a shortage of clerical staff with good typing skills meant that such staff members became pigeonholed as "old reliables" who were incorrectly deemed to have lower expectations of career progression.

2.6 Regarding the actual promotion competition, the complainant asserted that its administration and the marking scheme were flawed and inconsistent to such an extent that the decision-making process was undermined and open to discriminatory practices. She claimed as examples of this the fact that there was not an established number of vacancies to be filled from the post nor any established lifetime for the panel. The complainant asserted that an ordinary person may intuitively expect 10 or 12 people to be placed on a panel, but nine were chosen. She said that the 66.66% pass mark which was applied was arbitrary and excessive. She claimed that there had been confusion as to whether the interview would be structured or competency-based.
2.7 The complainant alleged that the respondent discriminated against her by withholding 13 marks under the category Educational Qualifications. She did not get the full 25 marks available under this category because she did not have post-Leaving Certificate qualifications. The complainant said such qualifications were not a requirement for the post of Junior Clerk. She said further that she believed that other candidates with lesser educational qualifications than she received the same mark, and claimed the interview board failed to differentiate her favourably from these candidates. The complainant also suggested that younger candidates were more likely to have post-Leaving Certificate qualifications given the increase in participation rates in third-level education in the past 20 years.

2.8 The complainant insisted that the interview board's decision not to place her on the Junior Clerk panel contradicted all of the formal and informal feedback that she received in her day-to-day job, her preparation for interview and her formal assessments. She said, further, that the interview board's assessment did not appear to be influenced by factors such as candidates' abilities to think on their feet and perform under pressure, as measured by their ability to fully answer all questions. The complainant alleged that there was strong anecdotal evidence that certain candidates were placed on the panel despite being unable to answer certain questions. She said, for her part, that she answered every question fully, calmly and to the best of her ability.

2.9 The complainant noted that part of the respondent's defence to her claim of discrimination was that only the Personnel Officer, who chaired the interview board, knew she was availing of family-friendly working arrangements, and he did not inform the other board members. She described this as facile, but said it was consistent with the respondent's emphasis on the rationality of the selection process and the computational approach to ranking candidates. The complainant said there was evidence to suggest that, contrary to such a mathematical approach, undocumented discussions took place based on undisclosed criteria. In support of this argument, she claimed she was told in her interview feedback that the interview board took time at the end to "see if there was a way of putting [her] on the panel".

2.10 The complainant asserted that she had been provided with confirmation of the likelihood of discrimination by an acceptance of the Personnel Officer that the respondent "may be discriminating against certain people". She claimed that in another conversation, the Personnel Officer said "our butts could be out the window on this". The complainant said that, since she initiated her claim, the respondent was considering carrying out an equality audit and amending the Junior Clerk promotion system to allow a proportion of appointments on seniority/suitability.

2.11 The complainant referred to the entitlement of the Equality Tribunal to draw inferences from a respondent's failure to provide information requested in the course of proceedings. She said she had received just one document on foot of such a request. Any other information she received resulted from a request she made under the Freedom of Information Act 1997 (FoI). She said that, even so, her FoI request was not handled properly and had to be appealed twice, each appeal yielding further documents. In dealing with her FoI request, the complainant claimed that the respondent failed to even refer to certain Government policy documents, Department of Finance circulars or General Council reports on equality issues, suggesting it appeared to have no knowledge of them.

3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denied that it had discriminated against the complainant in any way, and said the fact that she was not placed on the panel was not because she was treated differently from other candidates. The respondent said the competition was conducted in a fair, transparent and efficient manner and said the successful candidates succeeded purely on merit. The respondent said further that: (i) it did not discriminate against the complainant on any of the grounds claimed; (ii) the Office did not tolerate discrimination in any form; and (iii) the Office exceeded all targets in equality guidelines.

3.2 The respondent said that the relevant competition was organised in April 2002 for the purpose of establishing a panel from which internal promotions to Junior Clerk (from Clerical Officer and Staff Officer) could be made. In order to prepare candidates for the competition, the respondent organised interview training courses and a briefing on its change management programme. 18 COs applied for the competition, and all were interviewed over three days from 29 April to 1 May 2002. Nine candidates were deemed suitable and were placed on a panel.

3.3 The respondent said the interview board was chaired by its Personnel Officer, who was an experienced and trained interviewer. The other members of the board were a female Senior Clerk in the Office and a male Higher Executive Officer from the Department of Finance. The participation of these two interviewers was in accordance with normal practice whereby such boards have a gender balance and an external member.

3.4 The respondent noted the findings of the IPA publication referred to by the complainant (at 2.3 above). It said, however, that its record in relation to the numbers of women serving in promotional grades demonstrated that it did not have an equality problem. It pointed, in particular, to the fact that 48% of Assistant Principal posts were filled by women, exceeding the Government target of 33% to be achieved by 2005. The respondent also said that it had made a number of promotions while allowing the individuals concerned to avail of family-friendly working patterns, and pointed out that the complainant had been facilitated with an attendance pattern which saw her leave at or before 4pm every day.

3.5 Regarding the overtime panel referred to by the complainant, the respondent said that a strategic decision had been taken by senior management to establish trained back-up teams for the Bills Office, which would be in a position to step in at short notice during particularly busy periods. The respondent said that this clearly was a situation where availability for overtime was factored into the decision to offer the assignment to certain members of staff. It said that senior management, quite sensibly, made certain judgements regarding the availability of some staff members to work outside normal office hours. It described this as an essential and reasonable discretion which senior management must retain in order to ensure the continuity of supply for the business of the Houses.
3.6 The respondent denied that its promotion system was biased against women with childcare responsibilities. It pointed out that it did not keep statistics on whether staff had children of school-going age, as it had no justification to do so. The respondent pointed out that the complainant's figures at 2.4 above sought to link work-sharing with family status, but said that the complainant herself was not in fact work-sharing at the time of the competition as she was working from 8am to 4pm each day. The respondent said further that, while work-sharing could of course be linked to family status, it was not in itself a ground under the Act and therefore statistical information in that regard was not probative. The respondent suggested that the issue was family status, not work-sharing per se. It said that to the personal knowledge of the Assistant Director of Human Resources mothers of school-going children were among the successful candidates for the 2002 competition.

3.7 The respondent acknowledged that participation rates for promotion competitions seemed to demonstrate that a significant number of female clerical staff members (approximately 50%) did not apply for competitions. It said that this was a matter of concern to the Office and it had approached the relevant union with proposals to introduce an element of promotion to Junior Clerk on seniority/suitability, in recognition of the fact that some people were either nervous of the interview process or simply did not perform well at interview.

3.8 The respondent emphatically denied that availability for late-night work was a selection criterion for promotion to Junior Clerk. It said no such questions were asked at the interview, and no such discussion took place among board members. The respondent agreed that the nature of some of the work in the Office necessitated a portion (perhaps three/five of a complement of 24) of the Junior Clerk staff being available for late-night work on occasion, but it said it had not experienced any difficulty in ensuring enough staff members are available. The respondent pointed out that the sitting times of the Houses of the Oireachtas affected the working hours of civil servants in all Government departments, and not just its own employees.

3.9 The respondent rejected any idea that it had pigeonholed certain staff members as "old reliables". It pointed out that work in the Civil Service had changed as most staff worked on PCs and did not rely on typists. In any case, the respondent did not respond to any shortage of skilled typists by restricting such staff members to typing duties. It said the complainant was a case in point, not having been used for typing duties since 2000. The respondent said it had specifically chosen to allow skilled typists, such as the complainant, develop themselves in non-typing posts, while providing keyboard skills training to other staff members.

3.10 The respondent submitted, with respect, that if the figure of nine panel members was arbitrary, it was difficult to see how placing 10, 11 or 12 people could escape that description. It said, however, that the figure was not arbitrary. On the basis of their performances, nine candidates merited inclusion on the panel. The respondent noted that those who were unsuccessful would naturally be disappointed, but said this was not a valid basis on which to attack the competition. The respondent said that the pass mark of 66.66% was typically used for both internal and interdepartmental Junior Clerk competitions. It considered this an appropriate standard having regard to the importance of the Junior Clerk grade, and also the fact that it is effectively also a promotion grade for Executive Officer in the Civil Service.

3.11 The respondent said that, in relation to the education criterion, it had followed the practice set down by the Civil Service Commission. As for previous competitions, 25 marks (from a total of 300) were allocated for Educational Qualifications. Prior to the interviews, the board decided to allocate 12 marks as a baseline figure to reflect the fact that candidates had qualified to enter the Civil Service either with a Leaving Certificate or otherwise. It then decided to award extra marks as follows: 3 marks for a certificate, or 5 marks for a diploma, or 8 marks for a degree, or 13 marks for a master's degree. In the event, just two candidates were awarded 8 marks for a primary degree, of whom one was placed on the panel. The respondent said that the candidates who were placed first and second on the panel each received the same mark in this category as did the complainant. The respondent pointed out that post-entry educational facilities, including refunding of fees and study and examination leave, were available to the complainant and all other staff members.

3.12 The respondent said it was perfectly natural that unsuccessful candidates were disappointed following the competition. It pointed out that 15 of the 18 candidates had been highly recommended by their supervisors, which it said demonstrated the competitive nature of the competition. It said that the complainant's favourable assessment of herself and the positive feedback she had received from the Office were not factors that automatically entitled her to promotion. It reiterated that the complainant had been found unsuitable for promotion on that occasion, and not unsuitable in general terms. Regarding the specific allegation that successful candidates had been unable to answer certain questions, the respondent denied this absolutely.

3.13 The respondent repeated its insistence that the Personnel Officer did not discuss the complainant's personal circumstances with the other two board members. It also denied that undocumented discussions took place based on undisclosed criteria as alleged. It said the candidates were scored, on the basis of their performances, at the end of each interview. The respondent accepted that the board members deliberated on the 18 interviews to reassure itself it was being fair to all candidates and so could sign off on a panel it deemed suitable. The respondent described this "end-of-interview review" as a normal part of interview competitions as it provides quality assurance of the board's conclusions.

3.14 The respondent denied that there had been any admission that its policies were in any way discriminatory, as claimed. It said a meeting took place in May 2000 to discuss the issue of discrimination generally. At this meeting, the Personnel Officer outlined proposals the Office had in mind to ensure its HR practices did not impinge on equality legislation. These proposals included the introduction of a seniority/suitability criterion for Junior Clerk promotions and the carrying out of an equality audit to establish what, if any, changes needed to be made to the Office's policies. It was only in this context that the comments attributed to the Personnel Officer (at 2.10 above) were made.

3.15 The respondent said it cooperated fully with the complainant's FoI request. It said that, given the nature of entitlements under FoI and the structures under which information is released, it made no apologies for requiring staff to use FoI when seeking information. The respondent said it also made no apologies for its cautionary practices in ensuring the personal information of other staff members was protected to the proper extent. It said the extra information released to the complainant following her appeal to the Office of the Information Commissioner was statistical data relating to the competition, compiled in such a way as to prevent the ready identification of any other candidate's marks, following a suggestion from the Office of the Information Commissioner. The respondent asserted that the various Department of Finance and other documents were not given to the complainant on foot of her FoI request as it did not consider her request covered such material.

3.16 The respondent said that the statistics from the Junior Clerk competition showed that two out of four male candidates were successful, whereas nine out of 18 female candidates were successful, 50% success rate in each case. It argued that these statistics did not give rise to any inference of discrimination on the gender ground and that the burden of proof cannot therefore shift. It did not concede that, as a matter of law, the burden of proof can shift to an employer in claims of discrimination on grounds other than gender. Without prejudice to this point, the respondent argued that the statistics in relation to age and family status were not so imbalanced as to establish a prima facie case. It also pointed out that 17 of the 24 serving Junior Clerks were female.

3.17 Notwithstanding the above argument, the respondent said that the complainant had not demonstrated that she was superior to any of the successful candidates and submitted that therefore no inference of discrimination could arise. In this regard, the respondent referred to the decision of Quirke J in Davis v Dublin Institute of Technology (High Court, unreported, 2000). In that case, the judge said "...the fact that there is a gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation...A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidates "together with" a gender difference may give rise to such a requirement...".

4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.

4.2 The complainant alleged that the respondent discriminated against her on the grounds of age, family status and gender contrary to the provisions of the Employment Equality Acts 1998 - 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds.
Section 8 provides that
(1)In relation to-
(d)promotion or re-grading...
an employer shall not discriminate against an employee or prospective employee...

4.3 In the age ground case of Flexo Computer Stationery v Kevin Coulter (Determination No EED0313), the Labour Court said "It is now established in the jurisprudence of this Court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (SI No 337 of 2001) should be applied." Following this reasoning, I am satisfied that the respondent is not correct in its argument that the burden of proof should not shift in claims other than gender.

4.4 The Labour Court went on to say "The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v Southern Health Board ([2001] ELR 201). This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."

4.5 Several of the complainant's allegations are either anecdotal or generalised, and as such are not susceptible to the establishment of facts. Among these are her assertions regarding a climate of bias in the Civil Service, the reasons why female COs are not applying for promotion and the claim that certain successful candidates had been unable to answer some questions put at interview.

4.6 The Labour Court said in Dublin Institute of Technology v A Worker (Determination No DEE/994) that "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." I am satisfied that the only matter to be considered is this: when the complainant was unsuccessful in the Junior Clerk competition, was that as a result of her gender, family status or age, or a combination of all three, as she asserts?

4.7 It will be seen from the list of candidates supplied by the complainant (at 2.4 above) that seven of the nine successful candidates were female and that four of those were either the same age as or older than the complainant. It was the personal evidence of the Assistant Director of Human Resources, undisputed by the complainant, that at least some of these successful candidates were mothers of school-going children and so had the same family status as the complainant. It seems clear to me, therefore, that the complainant is unable to establish as a fact that there is a difference in gender, family status or age between herself and the successful candidates, either as individual grounds or as a combination of grounds.

4.8 While she listed herself as the only work-sharing candidate, I am satisfied that the complainant was not in fact work-sharing. She was availing of flexible working arrangements that permitted her to attend for duty from 8am to 4pm each day. While it is of course logical to assume that a number of persons availing of flexible working, or indeed work-sharing, have family status, the respondent is correct to say that work-sharing is not a ground in itself. The Act does not distinguish between parents who work share and those who do not.

4.9 Since the complainant cannot demonstrate a difference between herself and the successful candidates, the fact that she is of the opinion that she did an excellent interview is irrelevant. In the circumstances, I do not consider it necessary to deal further with the complainant's argument that a combination of grounds may give rise to a certain form of discrimination that is greater than the sum of its parts.

5. DECISION
5.1 Based on the foregoing, I find that the Offices of the Houses of the Oireachtas did not discriminate against Ms Breda O'Mahony contrary to the provisions of the Employment Equality Acts 1998 - 2004.

_____________________
Anne-Marie Lynch
Equality Officer

19 September 2005