FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : HEALTH SERVICE EXECUTIVE WEST - AND - ANN O'KANE (REPRESENTED BY IMPACT TRADE UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal under Section 83 of The Employment Equality Act, 1998. Dec E2006-055.
BACKGROUND:
2. A Labour Court hearing took place on 16th November 2007. The following is the Court's Determinaton:
DETERMINATION:
Subject:
Appeal against Equality Officer’s Decision No DEC-E2006-055.
Background:
The Complainant has been employed by the HSE (formerly the North Western Health Board) for 37 years. She is a Staff Officer Grade V. In 2000, she moved to the Births, Deaths and Marriages (BDM) Registration Office in Letterkenny, Co. Donegal. She was promoted to Staff Officer Grade V in 2002.
Following negotiations involving IMPACT and the Respondent, it was agreed that a Grade VI position would be created in the BDM service in the area. The Complainant applied for this position, in May 2004 but was unsuccessful in the competition. It was her view that She had been discriminated against on account of her age. She referred a complaint to the Equality Tribunal on 13th September 2004. A hearing was finally held on the 12th May 2006. Further correspondence ensued until 5th July 2006. On 13th November 2006, the Equality Officer issued his decision, finding that the Respondent did not discriminate against the Complainant in terms of Section 6(2) and contrary to the provisions of Section 8 of the Acts. The Complainant appealed this Decision to the Labour Court on 1st December 2006. A Labour Court hearing took place on 16th November 2007 in Carrick-on-Shannon.
Complainant’s Arguments:
1. The post she competed for was effectively her own post, which she had satisfactorily occupied for four years. On the appointment of the successful candidate the Complainant’s post was suppressed. All other staff within the BDM in Donegal were successful in competition for their own posts.
2. Three of the four candidates qualified by the Interview Board were significantly younger than the Complainant.
3. Her experience in BDM was much greater than that of the successful candidates. She was trained on the new Civil Registration system. Two candidates placed higher than her on the panel did not have such training.
4. The failure of the HSE to keep records in the form of interview notes in itself infers discrimination, especially as the Complainant saw notes taken at the interview itself.
5. Although the successful candidate had previously worked in BDM, it was at a lower level than the Complainant.. The Complainant managed more staff and officiated at a greater number of civil marriages than the successful candidate.
6. At an Interview training session held in March 20041, delivered by a Ms Caroline Kennedy, Staff were told that 70% of the marks were for appearance. This in itself infers discrimination against older candidates.
7. In conversation with the Complainant in February 2004, the Superintendent Registrar, who subsequently participated as a member of the Interview Board, enquired whether the Complainant “was suffering from the menopause”. This reflects a particular, and potentially prejudicial, perspective with regard to age. There is no record of such an enquiry being made of any of the successful candidates.
The above facts constituted sufficient grounds to justify the Court finding that there was a prima facie case of discrimination and thus the burden of proving that there was no discrimination would fall on the Respondent.
1. The Grade VI post in BDM was totally different from the post at Grade V then occupied by the Complainant. It had greater responsibilities, new duties, enhanced statutory signing responsibility for re-registrations of life events and for late registrations as well as a level of crossover for the BDM office in Stranorlar. The Complainant was not applying for her own job.
2. The Complainant was Supervisor for the Letterkenny Office, not the whole Donegal area. She became a Grade V when, having been placed on a panel, there were not enough Grade V vacancies for the people on the panel, and It was accordingly decided to upgrade her to Grade V but she remained in her then existing Grade IV position.
3. There were not meant to be any Grade VIs in the revised staffing structure for the North Western Health Board in line with the recommendations in the Doran-McHugh Report into the modernisation of the BDM system nationally. However, following further negotiations the Board agreed that the gap between the Grade VIII Superintendent Registrar and the 3 Grade Vs was too large and agreed to create a Deputy Superintendent Registrar post at Grade VI, for which a competition was held.
4. Seven candidates applied for the Grade VI job. The following table lays out the order and the ages of the candidates (at the time of the interview in May 2004):-
| Candidate No: | Age: | Placement on Panel: |
| 1. | 37 | Yes |
| 2. | 39 | Yes |
| 3. | 51 | Yes |
| 4. | 34 | Yes |
| 5. (Complainant) | 52 | No |
| 6. | 42 | No |
| 7. | 42 | No |
- Candidates 5-7 were not placed on a panel because they did not reach the qualifying mark of 320. The Complainant’s score was 318. As can be seen from the above, there is no evidence of age bias in the results.
5. While the Complainant had two more years’ experience than the successful candidate (No. 1) in the BDM service, the successful candidate had 5 additional years of “relevant management experience” which was a requirement for the job, yet she got 42 marks for this and the Complainant got 41, so there is no significant difference.
- The Complainant, however, did not excel in the other areas relating to the specifics of the post and did not demonstrate a sufficiently robust and thorough knowledge or understanding of the post, so she was not marked as highly as others.
6. Interview Boards do not only confirm candidates’ experience and/or qualifications but rather the benefits and knowledge gained from work experience. While, for instance, the Complainant knew of the new I.T. system for monitoring and controlling finance in the registration service, she did not have the best knowledge of how it would work in practice.
7. No notes were taken at interview and no records kept. At this time (May 2004) it was not mandatory to do so. It is now done in accordance with now-established best practice. At the time, candidates were simply told their marks and their place in the order of merit.
8. The following table gives years of experience in BDM and marks for overall experience of the successful candidates and the Complainant:-
| Candidate No: | Years Experience In BDM: | Qualification/Experience Marks Awarded: |
| 1. | 2.5 | 42 |
| 2. | 9.5 (F/T) & 4 (P/T) | 43 |
| 3. | 18 | 45 |
| 4. | 18 | 42 |
| 5. (Complainant) | 4 | 41 |
As can be seen these are reasonable marks and do not support any contention of discrimination on age grounds. The interview was then still of the traditional “information-based” type, attributing marks for the designated critical attributes i.e.-
• Professional Knowledge
• Organisational Knowledge
• Special Aptitudes
• Special Circumstances
- While the Complainant clearly had the qualifications and experience for the job, she simply did not do as well as other candidates in the interview.
10. While the Superintendent Registrar does not specifically recall asking the Complainant whether she was “suffering from the menopause” it would not be unusual that she might make such an inquiry “colleague to colleague” if one of her colleagues were feeling unwell. Such a question would not be in isolation and there would always be a context for it, such as her duty of care to all her staff.The Evidence:
The Complainantgave evidence of her qualifications and experience. She said that she had acted as Assistant Superintendent Registrar and managed the BDM service for North Donegal. She felt that as a Grade V her job increased in scale and complexity over what it had been as a Grade IV. She gave her understanding of the job she applied for. She spoke about the Interview Training session she attended in March 2004 and insisted that the trainer had said that “70% of the marks were for appearance”, which she felt was a discriminatory mark on age grounds.
She described her working relationship with Ms Heffernan, the Superintendent Registrar, as being good at first, but gradually deteriorating, leading to a lack of trust as they were on opposite sides in negotiations between the Board and IMPACT on the revised staffing structure. She alleges that the Superintendent Registrar told her that she had “got what she was getting and that there was nothing in it (the Grade VI) for her”. She was not encouraged to apply for the position.
She confirmed that Ms Heffernan had asked her about the menopause in the back office. She felt it was a discriminatory remark on age grounds as others would not have been asked such a question and besides she did not by then have the type of relationship with the Superintendent Registrar in which context such a remark might normally have been made.
She felt she did a good (15-20 minute) interview and had done well in all areas. She felt humiliated when the results came out and she had not been empanelled, coming only 5th out of 7. She definitely saw Board Members taking notes at the interview. She felt her age, experience and Union activism militated against her chances. Given her experience and qualifications and that fact that she was, in her view, already doing the job, she felt that the Respondent was looking for a younger, more up to date “image” for the job. This along with the “menopause” remark and the “70% for appearance” remark made at the training session made her strongly believe that she was discriminated against on age grounds.
Ms Marie Chrystal: Gave evidence that, at the time of the interviews, she was Personnel /Administration Manager for the Respondent. She gave details of the interview board, and of guidelines given to them on items such as note taking and keeping (best practice now but not at that time mandatory). Sometimes notes were taken and kept and sometimes not.
The Board was running both competency- based and traditional information-based interviews at the time. This one was of the latter type.
She confirmed that training was provided for members of the Interview Boards. The then perception was that any notes should be destroyed as they could be used against the Board. Now, of course, not to keep them can be used against an employer (as in the case of Gillen v Dept of Health).
She was not surprised that notes might have been taken but, if so, they would have been shredded, and not kept. She felt the average length of such an interview would more likely have been 30-35 minutes.
Ms Caroline Kennedy, an AP in the Office of the Revenue Commissioners, confirmed that she had conducted a pre-interview training session for interviewees, something she did regularly.
She confirmed that she stressed the importance of appearance and punctuality and being neat and tidily dressed and groomed and presented professionally. She neither said nor implied that “70% of the marks were for appearance” as this was quite simply untrue in any event. As she had previously worked in the Department of Justice, Equality and Law Reform, she would have been very conscious of making any age-related or inferential remarks.
Ms Margaret Heffernan, Superintendent Registrar: confirmed that she worked for four-and-a-half years with the Complainant and had supported her in her application for regarding of her Grade IV post to a Grade V.
She testified that there had been no post of Assistant Superintendent Registrar in North Donegal prior to the competition for the Grade VI post. The Grade V post then occupied by the Complainant was not the same in terms of scope or responsibility as the Grade VI post being competed for.
She did not agree that her relationship with the Complainant had deteriorated at the time of the industrial relations negotiations on staffing although they were on opposite sides of the table.
With regard to the Complainant’s interview, she testified that it had lasted 30-35 minutes. She did not think the Complainant had done a good interview. She felt the Complainant was weak in key areas where she would have been expected to have knowledge and to excel, such as organisational systems and the business package. She testified that she did not take notes and that the age of candidates did not enter into the interview process in any way. She agreed that her view was that the Complainant had already had her upgrading and that there was “nothing for her” in the Grade VI process. She had had a chat with the Complainant about this although she did not recall using the expression “gone as far as you’re going”.
She was pleased, not reluctant to accept, that a Grade VI post was being created.
Regarding the remark about the menopause, she felt a duty of care towards her staff, and while not recalling the particular remark, would quite likely have asked such a question out of concern for a colleague’s health. There was no ageist aspect to this at all, only collegiate concern. While she and the Complainant were not close, they had a good working relationship.
Facts Established:
Given that there was considerable conflict between the Complainant’s evidence and that of a number of the Respondent’s witnesses, on matters such as
- Whether or not notes were taken /kept.
- - Whether or not it was said that 70% of the marks at interview were for appearance.
- - The level of the Complainant’s job and responsibilities at the time of the interview.
- The import of the “menopause” question.
- Relations between the Superintendent Registrar and the Complainant.
-The quality of the Complainant’s interview.
The Court must weigh the balance of the evidence adduced and must then consider primarily those aspects which are claimed to represent discrimination on the grounds of age.
The first question here is the age distribution of candidates following the interview. Noting the distribution and the fact that a candidate only one year younger than the Complainant finished two places higher than her in the process, the Court cannot elicit any discrimination on age grounds directly from this.
On the question of the “marks for appearance”, even if it had been established as fact that the remark was made, it would not in itself represent discrimination on the age ground, as the context of the remark is of great importance. The Complainant chose to attribute a discriminatory inference to the remark. The evidence of Ms Kennedy is to the contrary and she testified that she never made such a remark at all. There is therefore no solid ground on which the Court could base a discriminatory inference here.
While the “menopause” remark is more or less admitted, nevertheless, given the context and timing of this remark, the Court is not convinced that it represents any convincing evidence of discrimination on age grounds.
The Court accepts that the Complainant’s age was not referred to at any stage of the process.
Unlike in the case of “Gillen v Dept of Health”, the Court has not found a pattern of marking in favour of younger candidates – in fact, as pointed out, a candidate only marginally younger than the Complainant scored better than her.
The Court is of the view that the Respondent’s explanation of the scoring system for the interview and the scoring of the candidates reflect a structured approach to the matter. The Court also notes with approval that the Board has now adopted best practice in regard to the keeping of notes while noting the conflict existing between the parties as to the taking and / or retention of interview notes.
In “Glasgow City Council v Zafar” [1998] (2All ER 953) Lord Brown-Wilkinson quoted from Neill LJ in “King v Great Barton China Centre” [1992] ICR 516, as follows (inter alia):-
- 1. It is for the applicant who complains of (racial) discrimination to make out his or her case. Thus if the Applicant does not prove the case on the balance of probabilities he or she will fail.
- 2. It is important to bear in mind that it is unusual to find direct evidence of (racial) discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill intentioned but merely based on an assumption that “he or she would not have fitted in.”
- 3. The outcome of the case will therefore usually depend on what inference it is proper to draw from the primary facts found by the tribunal.
- 3. The outcome of the case will therefore usually depend on what inference it is proper to draw from the primary facts found by the tribunal.
On balance, the Court prefers, in large part, and finds more convincing, the evidence given on behalf of the Respondent.
The Court dismisses the appeal and upholds the Decision of the Equality Officer.
Signed on behalf of the Labour Court
Raymond McGee
22 nd February 2008______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.