Equality Officer’s Decision No: DEC-E/2008/046
Parties
Lavery
(Represented by The Medical Laboratory Scientists Association)
And
HSE Mid-Western Region (Formerly Mid-Western Health Board)
(Represented by Dermot G O’Donovan - Solicitors)
File No: EE/2004/290
Date of issue 1Septembert, 2008
1. DISPUTE
This dispute involves a claim by Ms. Anne Lavery that she was discriminated against by HSE Mid-Western Region (formerly the Mid Western Health Board) on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts when (i) it failed to appoint her to the position of Laboratory Information System’s Manager at the Mid-Western Regional Hospital, Limerick, following interview in June, 2004 and (ii) it permitted the successful candidate to have access to the on-call rota in circumstances where she had been advised she would not be so entitled had she been successful.
2. BACKGROUND
2.1 The complainant was appointed to the post of Acting Laboratory Information System’s Manager (LISM) at the Mid-Western Regional Hospital, Limerick following a selection process in February, 2003. The complainant attended at interview for this post on a permanent basis in January, 2004 and was unsuccessful. However, no candidate was deemed suitable following that process and the post was re-advertised in March, 2004. The complainant applied again and was interviewed on 17 June, 2004. She was again unsuccessful and a male candidate was appointed to the post. The complainant contends that she was more suitably qualified for the post than this male candidate and submits that she was treated less favourably on grounds of gender contrary to the Acts. She further contends that the appointee was permitted to have access to the microbiology on-call rota (and thus have access to premium allowances) when she had been specifically told by senior members of the respondent’s staff (during her period as Acting LISM) that she would not be permitted to work as part of that rota in the event she was successful at interview. She contends that this constitutes unlawful discrimination of her, on grounds of gender, contrary to the Acts.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on13 December, 2004. In accordance with her powers under the Acts the Director delegated the complaint to Ms. Anne Marie Lynch, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submission were received from the parties but before the complaint came to Hearing Ms. Lynch transferred from the Equality Tribunal. The Director re-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. A Hearing of the complaint took place on 29 November, 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.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant states that she was appointed to the position of Acting Laboratory Information System’s Manager (LISM) at the Mid-Western Regional Hospital, Limerick in early March, 2003 following a selection process conducted by the respondent. She believes that she performed well in the post and she applied for the permanent position when the respondent advertised it in October, 2003. The complainant states that she attended for interview in January, 2004 while she was six months pregnant and she was unsuccessful. She submits that the score awarded to her under the heading “Management” did not reflect her experience and ability in this area and she contends that the process was unfair. The complainant states that nobody was panelled for the position following this interview and she remained in the post in an acting capacity. She did not therefore refer a complaint to the Equality Tribunal in respect of the process.
3.2 The respondent re-advertised the permanent position in March, 2004. The complainant applied again and attended for interview on 17 June, 2004. She was again unsuccessful and the position was given to the only other candidate interviewed – a male. The complainant contends that she was considerably more qualified than the successful candidate – having acted in the position for the previous fifteen months and had over eight years relevant IT experience. She states that on this occasion she was marked down under the heading “Knowledge and Understanding” of the Laboratory Information Systems, was awarded a score which falls into the “Less than Satisfactory” rating and was therefore deemed not qualified. She contends that this low mark is inexplicable given her experience under that category – she had satisfactorily acted up in the position for fifteen months – and submits that she was discriminated against on grounds of gender. The complainant contends that this treatment of her is further evidenced by the fact she was given only four days notice of her interview as she was on maternity leave at the time. She submits it is noteworthy that in June, 2003 she was placed second on a panel for an identical post at another hospital in the HSE-Western Region and in May, 2004 she was also placed second on a panel for the position of Chief Medical Scientist at another hospital in Limerick.
3.3 The complainant states that during the time she was Acting LISM she was informed that should be successful in securing the permanent position she would not be permitted to remain on the on-call microbiology rota. This rota provided personnel access to premium allowances for fulfilling that requirement. The complainant states that this was confirmed to her by Ms. A – HR Specialist- during the course of the interview in January, 2004. The complainant asserts that the successful candidate – following the June, 2004 interview – was permitted to remain on the rota and submits that this constitutes discrimination of her on grounds of gender contrary to the Acts.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertions in their entirety. It states that the complainant was successful following an internal competition for the position of Acting LISM in March, 2003 and that this was in keeping with the respondent’s policy for acting posts within the organisation. It adds that when the position was advertised in October, 2003 and March, 2004 it was for a permanent position and the vacancy was advertised in the national newspapers, in accordance with standard practice for posts of that nature. The respondent states that there were three applicants for the January, 2004 selection process – two males and the complainant. One of the male candidates did not present for interview and the Interview Panel did not consider either of the two remaining candidates suitable for appointment following interview. The respondent therefore re-advertised the position in March of that year. It states that only two applications were received – the complainant and the appointee – and that both were furnished with job descriptions/specifications and the rules of the selection process on receipt of same. It subsequently sought nominees to sit on the Interview Panel – comprising an independent Chairperson, an external expert in the area, an internal departmental manager and as the post in this instance had a significant IT dimension, a senior IT Manager was also nominated. The Panel comprised three males and a female, thus providing gender balance. The membership of the Interview Panel was approved by the Acting CEO of the respondent. The candidates were assessed across three pre-determined criteria which were subsequently accepted by the Interview Panel members as suitable for the position.
4.2 The respondent states that the complainant’s gender, pregnancy or maternity had no bearing whatsoever on the outcome of the interview. The complainant was unsuccessful because she did not display, to the Interview Panel’s satisfaction, that she possessed the necessary knowledge and understanding of the relevant Laboratory IT systems to adequately perform the role of the LISM post. It submits that the evidence furnished by members of the Interview Panel in the course of the Hearing and the contemporaneous notes of the interview submitted by the respondent supports its contention in this regard. The decision of the Interview Panel was reach by consensus and all four signed off on the recommendation that Mr. X be offered the position. The respondent adds that the fact the complainant was successfully placed on panels for appointment to posts in different hospitals/areas is not relevant as she was not selected for appointment to these posts in any event. The respondent rejects the assertion that it treated the complainant less favourably by giving her only four day’s notice of the interview in June, 2004. It states that all those involved in the interview, candidates and Panel Members alike, were notified of the arrangements in writing at the same time – 10 June, 2004 – seven days before the interviews. It submits therefore that the complainant was treated no differently to anybody else involved in the process.
4.3 The respondent accepts that the complainant was told by Ms. A, in the course of the interview, that there would be no access to the on-call rota for the person appointed to the permanent post of LISM. It further accepts that Mr. X (the successful candidate) was afforded access to the rota after his appointment. The respondent states that this situation arose as a result of a mistake and that the matter was rectified and the arrangement terminated as soon as it came to the notice of the respondent’s HR Department – which only arose after the complainant referred her complaint to the Equality Tribunal. It adds that the complainant had also erroneously benefited from this oversight during her time as Acting LISM as there was no entitlement to the rota in that role either. It states that the arrangement was a local one between the appointee and the Laboratory Manager which was agreed after the position was offered to him following interview. It adds that the appointee was extremely reluctant to accept the post unless access to the on-call rota was maintained and the Laboratory Manager agreed to continue access in order to fill the post. It argues that the arrangement had nothing got to do with the gender of the people involved rather it was totally related to the Laboratory Manager being able to fill the position as expediously as possible and submits that the behaviour does not constitute less favourable treatment of the complainant contrary to the Acts.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for consideration by me is whether or not the HSE Mid-Western Regions discriminated against Ms. Anne Lavery on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts when (i) it failed to appoint her to the position of Laboratory Information System’s Manager at the Mid-Western Regional Hospital, Limerick, following interview in June, 2004 and (ii) it permitted the successful candidate to have access to the on-call rota in circumstances where she had been advised she would not be so entitled had she been successful. In reaching my Decision I have taken into consideration all of the submission, oral and written, made to me by the parties as well as the evidence given by witnesses at the Hearing.
5.2 The apportionment of the burden of proof in cases of discrimination is governed by Section 85A of the Employment Equality Acts, 1998 and 2004. Whilst the events giving rise to the instant case predate the enactment of that section, the Labour Court has held[1] that the procedural rule prescribed by that provision is applicable in cases which come to Hearing after its commencement and the section is therefore applicable in the instant case. It requires the complainant to establish, in the first instance, facts from which it may be presumed that she suffered unlawful discrimination on the basis of her gender. It is only where such a prima facie case of discrimination has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 The complainant refers to the selection process for the post of LISM which took place in January, 2004. She contends that the marks awarded to her under the heading “Management” did not reflect her experience and ability in this area and she asserts that the process was unfair. Unfairness and less favourable treatment contrary to the Acts are not synonymous. I note that the permanent post remained vacant after the selection process – the male candidate was also deemed unsuitable and the complainant remained in the position in an acting capacity. In addition, the complainant made a conscious decision not to refer a complaint to this Tribunal at that time. The complainant has adduced no evidence which might lead to a conclusion that she was treated less favourably on grounds of gender at that time and in the interests of completeness I wish to state that she has failed to establish a prima facie case in respect of it.
5.4 The core of Ms. Lavery’s complaint focuses on the selection process for the post which took place in June, 2004. Only two candidates attended for interview – the complainant and the appointee. The first element of the complaint concerns the amount of notice the complainant received in respect of the interview. The respondent furnished documentary evidence which clearly shows that both candidates, as well as the four Interview Panel Members, received confirmation of the arrangements by letter dated 10 June, 2004. Consequently, I find that the complainant was not less favourably treated contrary to the Acts in this matter. Copies of the job specification for the position, the application forms for both the complainant and appointee and the scores awarded to both candidates at interview were furnished to me in the course of my investigation. I note that candidates were required to hold a relevant (specified) third level educational qualification and have at least at least seven years experience in a medical laboratory setting since qualifying as a Medical Scientist, two of which was spent in a promotional post. I further note that the overall purpose of the position was to “plan and manage the development, deployment, operation and maintenance of IT within the laboratory, including associated laboratory information systems, processes and resources”. At the time of the interview the complainant had acted in the post at issue for the previous fifteen months (her performance was considered satisfactory as confirmed by the Laboratory Manager in the course of the Hearing) and prior to that had over two years experience as a Senior Medical Scientist. In contrast, the appointee had no such experience in management and only had 6 months experience as a Senior Medical Scientist – in fact this was the first occasion on which he was able to fulfil the service requirements for the position. Finally, the complainant’s educational qualifications, on balance, are superior to the appointees. Taking these facts into account I find that the complainant has established a prima facie case of discrimination and the burden of proof shifts to the respondent to rebut that inference.
5.5 Prior to interview the respondent went to some lengths to acquire suitably qualified people to serve on the Interview Panel and the nominees were cleared at the highest level in the respondent organisation. All four members of the Panel gave evidence at the Hearing and I am satisfied that they were eminently qualified to participate on the Panel. In addition, both sexes were represented on the Panel. Both candidates were assessed across the same three predetermined criteria which all members of the Panel were happy with and I am satisfied that these criteria were applied consistently to both candidates. Evidence was given at the Hearing by each of the Interview Panel members independently as regards their individual impression of the two candidates and that the overall marks awarded to each candidate was reached by consensus following discussion between the Panel members. I found each of the witnesses to be credible and forthright in their responses at the Hearing and note that they all agreed the complainant did not demonstrate the required level of knowledge and understanding of the position at interview. The respondent furnished contemporaneous notes of the interview in respect of both candidates. I note the complainant stated she took no issue with the veracity of those notes and confirmed she did not consider that she was asked any discriminatory question(s) in the course of the interview. On the evidence presented, I am satisfied that the Interview Panel was properly constituted, that it conducted its business in line with accepted good practice and that the selection process was carried out in an open and transparent fashion.
5.6 It is not the role of this Tribunal to decide whether the most meritorious candidate is appointed to a post, rather its task is to determine whether or not the selection process was tainted by any bias on the impugned ground. This approach has been endorsed by the Labour Court in Louth VEC v Johnson [2]. That Court has also held in Kathleen Moore Walsh v Waterford Institute of Technology[3] that where it is satisfied that the Interview Panel was properly constituted and conducted its business in accordance with accepted good practice, it would not seek to undertake its own assessment of the candidates or substitute its views on their relative merits for those arrived at by the Interview Panel, unless there was clear evidence of unfairness or irrationality in the result. On the basis of the evidence presented I can find nothing to indicate any element of unfairness or irrationality in the process or that the marks awarded to the complainant were, in any way, tainted by discrimination on grounds of gender. I therefore find that the respondent has rebutted the inference of discrimination raised by the complainant and discharged the burden of proof required of it on this matter.
5.7 I shall now deal with the issue of the on-call rota. It is clear that the respondent’s position was that the holder of the position of LISM – whether acting or permanent – should not have access to the rota. The complainant had access to it during her period of acting up in the post, amassing a considerable benefit to her – and this was an error on the respondent’s part. Evidence was given by the Laboratory Manager that following the selection process in June, 2004 the appointee indicated to him that he would not take the position unless he was allowed access to the on-call rota – in line with the situation previously enjoyed by the complainant. The Laboratory Manager also stated in evidence that he agreed to allow the appointee access to the rota in order to fill the vacancy as he did not wish to further delay the filling of the vacancy - which had already been the subject of three previous competitions. He also stated that he did not inform the respondent’s HR Department of his decision in this regard. I am satisfied, on balance, that this was the case and that the arrangement was terminated when the circumstances came to the attention of the respondent’s HR Department following the referral of Ms. Lavery’s complaint to this Tribunal. Having regard to the foregoing I find, that whilst the arrangement is unfair and contrary to the respondent’s terms of employment for the post, it does not constitute less favourable treatment of the complainant on grounds of gender.
5.8 One final matter requires attention. Following the Hearing the complainant requested that the identities of the parties to this complaint be anonymised. Section 89(1) of the Acts places an obligation on this Tribunal to publish its decisions. The primary reason for this requirement is that a corpus of caselaw develops and is readily available to the public on complaints under equality legislation and thus inform best practice in the area. It has been the Tribunal’s standard practice to include the names of the parties involved in the complaint in the published decision, except in complaints involving sexual harassment and more recently certain complaints on grounds of sexual orientation and disability. I am not satisfied that the circumstances of the instant complaint warrants anonymity and the application for same is denied.
6. DECISION OF THE EQUALITY OFFICER.
Having investigated Ms. Lavery’s complaint I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts, 1998-2008. I find that the respondent did not discriminate against the complainanton grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts when (i) it failed to appoint her to the position of Laboratory Information System’s Manager at the Mid-Western Regional Hospital, Limerick, following interview in June, 2004 and (ii) it permitted the successful candidate to have access to the on-call rota for a period following his appointment and her complaint therefore fails.
____________________________
Vivian Jackson
Equality Officer
1 September, 2008