Mujegu
-v-
Headway Ireland
(represented by IBEC)
1. CLAIM
1.1 The case concerns a claim by Mr. Martin Patrick Mujegu that Headway Ireland, Dublin, directly discriminated against him on the grounds of gender and race in terms of section 6(2)(a) and (h) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in the selection process for appointment to the post of Training Officer.
2. BACKGROUND
2.1 The complainant forwarded his CV to the respondent and was called for interview for the post of Training Officer. He was not successful and submits that he was discriminated against on the gender and race grounds. The respondent rejects the allegation of discrimination and submits that all candidates were screened and evaluated using objective criteria and issues of race and gender were irrelevant.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 6 January 2004. On 13 October 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. A submission was received from the complainant on 8 June 2005. A submission was received from the respondent on 30 August 2005. A joint hearing of the claim was held on 28 February 2006.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant forwarded his CV to the respondent and was invited for interview on 12 December 2003. He arrived for interview at 8.50 am and waited for the 9.00am interview. At 9.45am, three dishevelled looking ladies arrived and after ten minutes, he was called for interview. He was immediately made to feel uncomfortable and was rushed through each question that was presented to him. On each occasion, he was cut short in his answers. The interview lasted just ten minutes from start to finish which he considers was rather short considering the interview was for a full time job as a rehab officer for acquired mentally disabled persons.
3.2 He considers that the interviewers considered that he was not suitable from the time they had seen his ethic-race-colour and gender in the reception area. The interview ended as abruptly as it began and he was informed that he would be contacted later in the day as to whether he was successful or not. He submits that his mate answered the telephone at 5pm that day and he was told that he was not successful. He considers that he got unfair treatment because of the way he looked and that he was not female.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent rejects the allegation of discrimination on any grounds. The organisation followed its established recruitment policy and procedures fully. The complainant first submitted his CV to the respondent office in Clontarf and it was forwarded directly to Human Resources by the Manager of the office. All CV's submitted through other departments are forwarded to Human Resources for screening. The complainant did not apply for any specific position. However, as the respondent was recruiting at that time for the position of Training Officer, his CV was considered for the position.
4.2 An advertisement for the two training officer positions which were created was placed in a Sunday newspaper and sixteen applications were received by the closing date. Twelve women and four men applied for the position. Three of the candidates were foreign nationals. Eleven candidates (9 women and two men inclusive of 3 foreign nationals) were invited to attend for a first interview. All of the candidates invited to attend for interview fulfilled the basic selection criteria in that they had educational qualifications in psychology, education/training or social science and some relevant work experience. Nine candidates attended for interview on 12 December 2003.
4.3 The interview board consisted of three females, the Dublin Training Manager, the CEO and a representative from Human Resources. The standard format agreed by the panel was (i) to welcome the interviewee, explain the format and ask the interviewee to lead the panel through their CV, (ii) to enquire about the interviewee's knowledge of the role, Headway Ireland and Acquired Brain Injury.; (iii) to conclude with scenario questions. The complainant was the first of nine candidates to be interviewed on the day and his interview was scheduled for 9am. The three interviewers arrived at 9am at the offices where the interviews were being held and the complainant was invited to enter the conference room no later than 9.10am. Although there was a short delay in commencing the interview, the complainant was not kept waiting any longer than ten minutes. Interviews were scheduled in half hour slots. In order to allow time for evaluation and discussion, interviews were intended to last a maximum of twenty to twenty five minutes. The complainant's interview lasted approximately twenty minutes. Most of this time was taken up with the first section of the interview, i.e. a review of his CV. When asked by the Human Resources representative to provide an overview of relevant experience and education, the complainant talked at length about his childhood, personal feelings and motivation despite several attempts to bring the conversation back to the role in question.
4.4 The CEO then proceeded to ask the complainant about his knowledge of the organisation and of the specific role in question. The complainant displayed very little knowledge of the Training Officer role for which he was being interviewed. Although a number of attempts were made to bring the conversation back to the interview format, the complainant failed to answer the questions posed and continued to talk about his strong personal interest in psychology and his plans for the future. It became increasingly difficult to interrupt him in order to move on to the next section of the interview and as a result, the panel did not have the opportunity to ask any of the agreed scenario questions. The interview had to be wound up at that point as it was nearing the end of the time allocated and eight more candidates were scheduled to meet with the panel during the day.
4.5 On the respondent's standard interview evaluation form, all interviewees were rated by each interviewer on a scale of zero to four according to the following criteria:
- Knowledge of specific job and job related topics
- Experience
- Communication
- Interest in position and organisation
- Overall motivation to succeed
- Poise and confidence
- Comprehension.
Each interviewee was scored individually after the interview and marks were then discussed briefly by the panel. Interviewers could use the second page of the evaluation form for comments and notes but were not required to do so. All ratings and comments were then reviewed fully by the panel at the end of the day and a short list was drafted for second round interviews.
4.6 The complainant received a score of 7/28. Although there were some differences in specific ratings between the three interviewers, the complainant was the candidate with the lowest marks. These marks were based entirely on objective criteria and reflected only the responses to interview questions on the day. The rating was in no way affected by the complainant's race, nationality or gender. The complainant was called later that evening and as he was not available, a message was left on his voicemail.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the gender and race grounds in relation to access to employment. I will therefore consider whether the respondent directly discriminated against the complainant on the gender and race grounds in terms of section 6(2)(a) and (h) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Establishing a prima facie case
5.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (1) considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.3 Subsequently, the Labour Court stated in relation to the burden of proof in an age discrimination case that:
"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 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. 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."(2)
More recently, the Court stated in a case which concerned discrimination on the race and religion grounds:
". ....... the Court is satisfied a rule requiring the shifting of the probative burden to the respondent where the complainant makes out a prima facie case is applicable in the instant case." (3)
The provisions of the Employment Equality Act, 1998
5.4 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(e) that one is a woman and the other is a man (in this Act referred to as the "gender ground"),
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),.
Issue of whether the complainant has established a prima facie case of discrimination
5.5 I will proceed to consider the issue of whether the complainant has established a prima facie case of direct discrimination on the gender and/or race grounds. In accordance with the principles established in the Mitchell (4) case and reiterated in the Flexo (5) and Icon (6) cases, I must consider whether the complainant has established the primary facts on which he relies and secondly, if he has established the primary facts, I must consider whether 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.
5.6 The respondent in this case advertised for two Training Officer posts in a national newspaper. Applications from 16 candidates were considered. Human Resources compiled a short summary of candidates' qualifications and experience in respect of the sixteen candidates for use of the managers (the Dublin Training Manager and the CEO who were both on the interview board) which was subsequently made available to me. Eleven candidates (nine females, two males, three foreign nationals) were called for interview on the basis that they had educational qualifications in psychology, education/training and some relevant work experience. Three females and two males were not called for interview. The complainant submitted that he received a phone call inviting him for interview and he was aware that it was for the Training Officer position he was being interviewed. During the interview process, a standard interview evaluation form was used and candidates were marked by each interviewer by reference to the eight criteria contained therein. The second page of the evaluation form allowed interviewers to comment under the headings of (i) general comments, (ii) concerns, (iii) positive impressions and (iv) recommendations. All three interviewers made comments in respect of the complainant's interview and all three interviewers did not recommend the complainant for a second interview.
5.7 There was a dispute between the parties as to the appearance of the interviewers and the time at which the interviewers arrived at the offices that were being used for interview. I note that the complainant submitted on his referral form that the interviewers arrived in a dishevelled state at 9.30am, in his written submission to the Tribunal, he submits that the interviewers arrived at 9.45am and at the hearing, he gave evidence that they arrived at 9.35am. The respondent submitted that the interviewers were not dishevelled and that the interviewers arrived at 9am and commenced the interview at 9.10am which then ended at 9.35am. The complainant submitted that he was asked two scenario questions at interview and the respondent submitted that it did not have time to ask him any of the scenario questions as the complainant tended to digress from the questions asked.
5.8 The interview board consisted of three females as at that time, it was standard practice that the hiring Manager, the HR Manager and the CEO would sit on the interview board. It just so happened at the time that all three persons were female. In relation to gender imbalances on selection boards, the Labour Court in the Mitchell case referred to the Gleeson (7) case and stated:
"The Court considers it highly undesirable to constitute an interview board made up entirely of men. This is particularly the case where, as in the Medical Profession, there is a dominance of men at the most senior professional level. Gleeson cannot be regarded as authority for the proposition that gender imbalance in an interview board, in itself, leads to a prima facie finding of discrimination in every case. Nonetheless, the Court considers that such a practice is potentially discriminatory and can form part of the evidential chain on which a claim of discrimination could be made out.
The Court would urge all parties to have full regard to the now accepted need to ensure gender balance at all levels in the process of selection for appointment." (8)
5.8 In this case, a job and person specification was drawn up by the HR Manager in conjunction with the hiring manager about a month before the interviews. A summary of candidates' qualifications and experience was drawn up by Human Resources to assist with the short listing of candidates for interview. Candidates were assessed and marked at interview under eight different criteria according to the standard assessment form. Notes were made at interview and all documentation was retained and provided to me. Whilst the gender balance of the interview board is an issue, I am not satisfied that this factor, in itself and in the absence of other factors is sufficient to raise a presumption of discrimination on the gender ground. I have considered the totality of the evidence presented and I find that the complainant has failed to establish a prima facie case of discrimination on the gender or race ground in the selection process for the post of Training Officer. In the circumstances, his claim cannot succeed.
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent did not discriminate against the complainant on the gender ground or race ground in terms of section 6(2)(a) and (h) of the Employment Equality Act, 1998 contrary to section 8 of the Act in relation to the selection process for appointment to the post of Training Officer.
__________________
Mary Rogerson
Equality Officer
29 March 2006
notes
(1) DEE011 15 February 2001
(2) Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003
(3) Icon Clinical Research Limited v. Djemma Tsourova Determination No. EED054 11 March 2005
(4) DEE011 15 February 2001
(5) EED0313 9 October 2003
(6) EED054 11 March 2005
(7) The Rotunda Hospital and Noreen Gleeson AEE/99/9 Determination No. DEE003
(8) Southern Health Board v. Dr. Teresa Mitchell AEE//99/8 Determination No. DEE011