DEC-E2008-047 - Full Case Report

Decision in accordance with the

Employment Equality Acts 1998-2008

DEC – E2008 – 047

Mr. Niall Cahill

V

Minister for Social & Family Affairs

(Represented by Mr. Anthony Kerr acting on instructions from the

Chief State Solicitor’s Office)

Mr. Cahill referred a claim of discrimination on the gender ground in relation to promotion to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2004.  In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, 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.

Summary of the Complainant’s Case

The complainant submitted an application for promotion to Principal Officer in 2005 in response to notice ON 69/05 inviting applications from eligible officers within the respondent department.  He argues that the department’s treatment of him in this competition amounts to discrimination based on the numbers of male and female applicants compared with the numbers of each gender who were successful.  Of the 77 who applied, 2 withdrew, and of the remainder 53 were male and 22 were female.  Of the 13 who were successful, 5 were male and 8 were female (see table below).  The complainant, who was assessed as exceptionally well qualified (EWQ), also addressed the numbers of candidates who were rated as EWQ when assessed for the competition.  He suggested that these numbers were also skewed since of the 26 EWQ candidates, 19 were male and 7 were female but only 2 males were successful while the number for females was 4.  The complainant suggests that these figures reflect an exceptional disparity between males and females and that an unseen hand may be at work in order to achieve the Department’s, and also Government’s, pre-existing policy of increasing the number of females in senior management grades.  He stated that the numbers expressed as targets for the department in fact represented quotas.  Mr Cahill also used statistical analysis, Bernoulli trials, in support of his complaint.

At the hearing the complainant clarified that he had been unsuccessful at the first stage of the competition and that any treatment of him personally by the respondent in respect of this competition had ended there.

Summary of the Respondent’s Case

The respondent denies the allegations.  They operate a gender neutral policy and as such no positive actions are undertaken in relation to women.  The relevant target was achieved during the year before this competition was held.  The department stated that it operates a policy of promotion solely on merit and that the results seen in this competition reflect trends also seen in competitions held by the Public Appointments Service.  Their policy is to promote equality of opportunity for all employees.  The respondent states that the use of random statistical tests such as Bernoulli trials with such data is inappropriate.  It is argued that if success rates for males and females do not fall on gender lines, relative to the numbers being interviewed, any departure from the results is due to the difference in merits of the cohorts, i.e. superior performance of the candidates on the day.  The respondent submitted that the complainant had not gotten over the Mitchell test and that they did not see the complaint as one of indirect discrimination.  The respondent does not dispute the figures submitted by the complainant and further figures submitted by the respondent are below.

Preliminary Interviews

Conclusions of the Equality Officer

The complainant claims that he was less favourably treated during this competition process because of his gender and that it was only when the results were issued that the discrimination became apparent. 

The burden of proof is defined in Section 85A as follows:

85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The burden of proof described above requires the complainant to establish the primary facts in support of his claim.  He must first prove as a fact one or more of the assertions on which his complaint of discrimination is based. A prima facie case of discrimination can only arise if he succeeds in discharging that evidential burden. If he does, the burden of proof shifts to the respondent to show that there were reasons other than gender for the outcome.  If he does not, his case cannot succeed.  This is the Mitchell test referred to.

The complainant took part in the preliminary round of the competition only.  I will therefore restrict my examination of the process to that part of the competition involving the complainant, that is to the part of the process where there was any treatment of the complainant.  As the complainant was not involved in the secondary stage of the competition he has no locus standi before me in that regard.

The complainant’s preliminary interview was before Board 1 and the results from that Board’s deliberations are included in the table below.

Board 1

72% of the candidates before Board 1 were men, 28% women and 66% of the successful candidates were men and 33% women.  The straightforward input and output figures for the process do not reflect any significant disparity.  Since 66% of those successful in the first round before Board 1 were men and 33% were women the evidence does not support the allegation that men in general, or the complainant in particular, were treated less favourably because of their gender during this process.

Looking at the EWQ participant numbers and success rates is not really useful since the numbers are so small.  For example, 4 EWQ candidates were successful of whom 50% male and 50% female.  However, a change of one person either way would severely distort the result giving results of either 75% or 25%.  Therefore the cohort size is simply too small to give a clear picture. 

Looking at the success rates gives another view of how each gender group performed and women had a success rate of 40%, (4 out of 10), compared to men who had a success rate of 31%, (8 out of 26).  This is a disparity of only 9% which I do not consider to be supportive of an assertion that there was preference for the selection of women.

The same exercise with the results from the second board, though not directly relevant to the complainant, produces similar results which are listed in the table below. 

Board 2

In summary, the numbers of men and women who were successful after being interviewed by Board 1 are comparatively proportional with the numbers of men and women who presented for interview.  Since more men than women were selected, 66% v 33%, there is no evidence to support an allegation that men in general, or the complainant in particular, were treated less favourably because of their gender during this process.  Therefore a claim of discrimination of the complainant in the circumstances cannot succeed. 

I am satisfied that the evidence presented, including the statistics in particular, are insufficient to establish a prima facie case of discrimination.  I find that the complainant was not discriminated against while taking part in the preliminary interviews of the 2005 P.O. competition run by the respondent.

Decision DEC-E2008-047

Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts.  I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in accordance with Sections 6, 8 and 22 and consequently this decision is in favour of the respondent.

Bernadette Treanor

Equality Officer

11^th September 2008