GILL
(REPRESENTED BY MR. BRENDAN ARCHBOLD)
AND
CLIENTLOGIC (T/A UCA&L)
(REPRESENTED BY MASON, HAYES, CURRAN - SOLICITORS)
1. DISPUTE
This dispute involves a claim by Ms. Kulwant Gill that she was discriminated against by Clientlogic t/a UCA&L on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 -2004 and contrary to section 8 of those Acts when it failed to appoint her to the position of Training Assistant following interview in August, 2004.
2. BACKGROUND
2.1 The complainant, who was born in India, commenced employment with Gateway Computers in 1998 as a Sales Representative and after two years moved to a position of Technical Support Representative. The company was taken over by the respondent in November, 2001 and the complainant continued in her role with the respondent. In January/February, 2004 the complainant commenced working in the respondent's Training Department on a part-time basis. She continued to work in this area for several months and applied for a full-time position in the area when it was advertised in August, 2004. She was unsuccessful and the position was awarded to an Irish applicant. The complainant asserts that she was better qualified than the successful candidate, that she performed extremely well at interview and that her failure to be appointed to the post constitutes discrimination of her on grounds of race. The respondent rejects the complaint's assertion that she was treated less favourably on grounds of race in respect of the selection process and states that the most suitable candidate was selected for the position.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2004 to the Equality Tribunal on 19 November, 2004. In accordance with her powers under the Acts 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 Acts. Submissions were received from both parties and a Hearing of the complaint took place on 31 January, 2007 A number of points emerged at the Hearing which required further clarification and gave rise to correspondence between the parties and the Equality Officer. This process concluded in late August, 2007.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant, who is of Indian ethnicity, commenced employment with Gateway Computers in 1998 as a full-time Sales Representative. She states that after two years in this role she moved to the position of Technical Support Representative, working thirty hours per week. The company was taken over by the respondent in November, 2001 and the complainant continued in her position as Technical Support Representative. The complainant states that she has a Degree in Industrial Relations and Personnel Management (which includes a Year Diploma in Training and Development) and a qualification in Teacher Training. She adds that in January, 2004 she approached the respondent's Training Manager (Ms. X) and asked if she could assist in that area of work. The complainant's proposal was approved and she began to sit in on training courses (three hours a day for three days a week) for a couple of weeks as an observer. The complainant adds that she commenced delivering training to new recruits shortly afterward, initially under the supervision of Ms. X and from March she was doing so unsupervised. She states that Ms. X gave her positive feedback on her performance and by April, 2004 she was involved in the training area about ten hours a week. She adds that during the next seven months she was permitted to mark assignments and give feedback to trainees under her supervision, maintained the training database and performed other administrative duties. The complainant states that during this period she still considered herself to be a Technical Support Representative.
3.2 The complainant states that in early August, 2004 she received an e-mail from the respondent's HR Manager seeking applications for two vacancies - (i) Recruitment Co-ordinator and (ii) Training Assistant. She adds the e-mail indicated that staff who had been identified as at risk of losing their employment due to downsizing of the respondent organisation would be given priority in respect of the posts. The complainant asserts that she had been advised by her Line Managers that she was in the "at risk" category and she applied for both posts. The interview for Recruitment Co-ordinator was held first. The complainant was unsuccessful but received positive feedback on her performance at interview from the respondent's Recruitment Manager. The complainant attended for interview in respect of the Training Assistant post on 24 August, 2004. The selection process comprised a fifteen minute interactive training session and a formal interview. The complainant states that she was surprised by the composition of the Interview Panel - it comprised Mr. A (a Director of the respondent company) and Ms. X - there was no representative from the HR Department. She adds that the interview was conducted in a very informal manner but she nonetheless considered she did an excellent interview. The complainant was unsuccessful and the position was filled by an Irish female candidate. The complainant contends that she had (i) superior academic qualifications to those of the successful candidate, (ii) seven months experience of the work in the area, (iii) performed that work well for that period and was in the "at risk" category. She further submits that there was no racial balance to the Interview Panel, that the respondent did not operate a formal marking scheme and there is a paucity of interview notes to support the decision to select the successful candidate over her . The complainant contends that these factors demonstrate the process lacked transparency and are facts, when taken together, from which discrimination on grounds of race can be inferred. In support of her contention in this regards she submits that the respondent has a preference for Irish personnel in Management positions in circumstances where the majority of the staff are not Irish.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent accepts that the complainant was involved in the Training Area and agrees the circumstances that gave rise to her time there, but contends that the arrangement only started in February, 2004. It further accepts that the complainant delivered some training under the supervision of Ms. X and later on her own. However, it contends that more than half of the tasks performed by the complainant during her time there related to administrative duties.
4.2 The respondent states that it sought applications for the position of Training Assistant, from internal candidates only, in early August, 2004. It adds that it prepared a document giving an overview of the position, the skills required and the responsibilities attached to the post. It states that this document was accompanied by an application form and both were circulated on the internal e-mail. It accepts that the e-mail indicated priority for the post would be given to staff whose employment had been identified as at risk, but contends that neither the complainant nor the successful candidate were in the "at risk" category and argues in any event being so categorised would only result in priority for getting to interview. The respondent states that nine applications were received - five of whom were interviewed and the Interview Panel comprised Ms. X (in all cases) and one other General Manager, depending on availability. In addition, this second interviewer was involved with a different function to that of the candidate in question, to ensure impartiality. In the complainant's case this was Mr. A and in the case of the successful candidate it was Mr. D. It adds that the members of the Panels had considerable experience in interview techniques and Ms. X holds Irish Business Training qualifications. The candidates were asked the same set of questions which had been developed by Ms. X (in consultation with the HR Department) the week beforehand. The respondent states that interview notes were kept in respect of the complainant and the successful candidate by three of the four Panel members - Mr. A did not make notes. It adds that it is not always possible to have a representative from the HR Department on every Interview Panel but the selection process would be proofed by it. The respondent accepts that no formal marking system was applied in the selection process but states that following interview the Panel members discussed the positive and negatives point of both candidates based on their performance at the interactive training session and the interview itself and Ms. X decided that the successful candidate was the better of the two.
4.3 The respondent rejects the assertion that the complainant's ethnicity had any impact whatsoever on the decision not to appoint her to the post and submits that she has failed to establish a prima facie case of discrimination. It seeks to rely on the decision of the Labour Court in Southern Health Board v Dr. Theresa Mitchell in support of this assertion. It further submits that the complainant has failed to establish a significant difference between her and the successful candidate in terms of experience and such a failure has been held to be necessary to shift the burden of proof to the respondent . The respondent accepts that at the relevant time approximately 66% of management staff were not Irish and 42% of staff as a whole were Irish. It argues that such a breakdown is a feature of the sector where staff turnover rates are high - the average tenure for Representative posts being 10 months. It submits that statistical data is not sufficient, of itself, to establish a prima facie case of discrimination and seeks to rely on the decision of this Tribunal in Maher v BOM Colaiste Chiarain in this regard. In conclusion, the respondent submits that the selection process was open, transparent and fair and the complainant's non-selection was because she failed to demonstrate at interview that she was the best candidate for the position.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me are whether or not Clientlogic t/a UCA&L discriminated against Ms. Gill on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 -2004 and contrary to section 8 of those Acts when it failed when it failed to appoint her to the position of Training Assistant following interview in August, 2004.
5.2 At the time of the alleged discrimination the Employment Equality Acts, 1998-2004 was in force. Section 85A of those Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment on the ground cited. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 Copies of the Application forms for both the complainant and the successful candidate were made available to this Tribunal. I note that the complainant had a minimum of six months experience (on a part-time basis) in the respondent's Training Department -effectively performing the post in question. In addition, she had a Certificate from the Institute of Training and Development (2002) and a Diploma in Teacher Training (2003) which involved classroom management, use of different teaching resources and 10 hours of actual classroom delivery (which was subject to examination). The successful candidate had four months full-time experience in the delivery of training to new recruits on a particular client account within the respondent organisation and a lesser role (for about a year) in respect of another client. In addition, she had completed a number of short duration training courses which could be considered of some relevance to the role. I note it is accepted that the complainant and the successful candidate are of different ethnic backgrounds. The respondent produced data indicating the breakdown, by nationality, of its workforce and this data supports the complainant's assertion that whilst almost 60% of the respondent's workforce is non-Irish, only one third of employees in Management positions are non-Irish. The respondent submitted that high turnover rates of staff and short periods of tenure give rise to these trends but adduced no evidence to support this assertion. In light of the foregoing, I am satisfied, on balance, that the complainant was better qualified for the position than the successful candidate and has established a prima facie case of discrimination. Consequently, the burden shifts to the respondent to rebut the inference of discrimination raised.
5.4 I note that the respondent prepared a document setting out an overview of the post, the skills required and responsibilities attached to it. This was circulated to all staff at the beginning of the selection process along with an Application Form asking candidates the same four questions. I note that of nine applications received, only five were interviewed, including the complainant and the successful candidate. Ms. X attended the Hearing and stated that she prepared the questions for interview about a week before hand and these questions were asked of all candidates. Copies of these questions (along with the notes of responses given to same) in respect of three of the four persons who interviewed the complainant and the successful candidate, were furnished to this Tribunal. In the course of the Hearing the complainant confirmed that she was asked these questions and also confirmed that the notes (of Ms. X - Mr. A made no notes) reflected her responses to them. I am therefore satisfied that both candidates were asked the same questions in the course of the interview. The complainant submits that the composition of the Interview Panel was irregular given there was no HR person present and she was interviewed by Mr. A, a Director. The respondent states that Ms. X was on both Panels and I am satisfied that this is the case. It further states that it ensured the second Panel member was a Senior Manager from a different area to the candidate in an effort to achieve fairness and whilst such a practice may not be ideal, I cannot hold that it is discriminatory. In addition, whilst it might be considered best practice to have someone from the HR Department on an Interview Panel, a failure to do so is not, of itself discriminatory. I note Ms. X gave evidence in the course of the Hearing that she made the final choice on who was the most suitable candidate and as she was on all Panels. I am also satisfied that ensuring some form of racial balance on the composition of the Interview Panel -when candidates are of several nationalities or ethnic origins- presents a more difficult challenge for an employer than providing a gender balance and note that one of the people who interviewed the successful candidate was Spanish. Whilst both those who interviewed the complainant were Irish I am not satisfied that this can be viewed as a feature of discrimination, in the circumstances. In light of the foregoing I cannot accept the complainant's proposition that the composition of the Panel was discriminatory.
5.5 The respondent states that it did not operate a formal weighted marking system of competencies across which candidates were assessed. Instead it listed the positive and negative points of each candidate in respect of the interactive training session and the interview itself. Copies of these comments were also furnished to the Tribunal. In Dublin Institute of Technology v A Worker the Labour Court held as follows: "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". In the instant case it is the complainant's ethnic origins which are at issue. In light of my comments in this and the preceding paragraph, I am satisfied that the complainant's ethnicity was not a factor in the selection process. It follows therefore that the respondent has discharged the burden of proof required of it and it did not discriminate against the complainant contrary to the Employment Equality Acts, 1998-2004. Before leaving this issue, one further matter warrants mention. The complainant contends that she was in the "at risk" category which should have afforded her priority in respect of the post. The respondent contends she was not it that category and states that even if she was, it would only result in her receiving preferential treatment up to the interview itself. I do not consider it necessary to make any comment on this point as I view it to be an industrial relation's matter - the relevant trade union was engaged in the process of which staff should be so categorised - and it was not connected in anyway whatsoever with the race or ethnicity of the parties.
6. DECISION OF THE EQUALITY OFFICER.
I find the respondent did not discriminate against the complainant on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 -2007 and contrary to section 8 of those Acts and her complaint must therefore fail.
____________________________
Vivian Jackson
Equality Officer
31 December, 2007
1Rosaleen Devereux -v- Bausch & Lomb DEC/E2005/020.
2 Limerick County Council v Reynolds EDA048
3 DEE 011 of 15 February, 2001
4 Moore Walsh v Waterford DIT EE/2003/022
5 DEC-E2006/019
6 DEE 994