Equality Officer's Decision No: DEC-E/2011/019
Parties
A Complainant
(Represented by SIPTU)
And
A Hospital
(Represented by Ms. Eilis Barry BL
Instructed by A&L Goodbody- Solicitors)
File No: EE/2008/261
Date of issue: 7 February, 2011
Headnotes: Employment Equality Acts, 1998- 2007 - sections 6&8 - gender -discriminatory treatment - promotion - prima facie case
1. DISPUTE
This dispute involves a claim by Mr. A that he was discriminated against by the respondent on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts, when it failed to appoint him to the position of Clinical Nurse Manager II (CNM II) following interview in January, 2008.
2. BACKGROUND
2.1 The complainant applied for promotion to the position of CNM II following the post being advertised internally in early January, 2008. He attended for interview a few weeks later and was unsuccessful. The position was filled by a female colleague. The complainant asserts that he was better qualified than the successful female candidate and contends that the failure of the respondent to appoint him to the post constitutes discrimination of him on grounds of gender contrary to the Acts. The respondent rejects the complainant's assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2007 to the Equality Tribunal on 22 April, 2008. In accordance with his powers under the Acts the Director delegated the complaint to me, Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaints commenced on 4 October, 2010, the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 13 January, 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant worked as a Staff Nurse with the respondent in a part-time permanent capacity from May, 2002 until he resigned from the position in October, 2008. During this period he was also employed on a full-time basis by Dublin Fire Brigade as a Paramedic. He states that he has eighteen years' nursing experience, fifteen of which was as a qualified Staff Nurse and three of those are as a Clinical Nurse Manager. He adds that in addition to the experience he had in the Out Patient's Department (OPD) in the respondent hospital, he had considerable experience of an OPD type environment from when he worked in Base Hospitals in remote areas of Australia during the late 1990's. The complainant contends that he had superior educational qualifications to the successful candidate, in particular a degree in Nurse Management from University College Dublin. In summary, the complainant contends that he was better qualified, both academically and clinically, than the successful female candidate.
3.2 The complainant contends that the members of the Interview Panel did not possess the necessary qualifications/experience to interview him. He states that their lack of knowledge resulted in them being unable to fully understand the responses he made during the interview and this lack of understanding was reflected in the marks he received in each of the three main competencies under which candidates were assessed. He also asserts that the Interview Panel failed to give him credit for a qualification (at Diploma level) which he held in respect of Emergency Medical Technician which was accredited by a University in Boston USA. The complainant states that the Interview Panel comprised three female members only and submits that this fact, coupled with the fact that the successful candidate was female, supports his assertion that he was subjected to discriminatory treatment on grounds of gender.
3.3 The complainant asserts that the successful candidate received extensive coaching from a member of the Interview Panel (Ms. D) in advance of the interviews. He adds that he made attempts to contact Ms. D on two occasions to seek her advice on areas which might be useful from him to research in advance of the interviews and she (Ms. D) never returned his calls. He submits that this gave the successful candidate an unfair advantage in the selection process as she had prior knowledge of the areas which might be covered at interview and is further evidence of the alleged less favourable treatment of him contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that it discriminated against him. It submits that the selection process was conducted in a fair and transparent manner in accordance with normal procedures and that it was applied to all three candidates interviewed for the post, including the complainant. It accepts that the Interview Panel comprised three females but argues that this of itself is insufficient to establish a prima facie case of discrimination and relies on the Labour Court Decision in Mitchell v Southern Health Board in this regard. The respondent further submits that it is not the Tribunal's task to decide whether or not the most meritorious candidate was successful rather it should restrict itself to the question of whether or not the selection process was tainted by discrimination and argues it adduced evidence to demonstrate that was not the case. Notwithstanding its arguments on the objective manner in which the entire selection process was conducted, the respondent submits that the complainant was not better qualified than the successful candidate and in addition, the Interview Panel formed the opinion that the complainant did not demonstrate at interview the necessary skills/competency to perform the duties attached to the post.
4.2 The respondent states that the vacancy was for the post of Clinical Nurse Manager II in the hospital's Out Patient's Department. It adds that the OPD is the busiest in the country with almost 120,000 attendances in 2008. It states therefore that position of CNM II in the Department was a pressurised and highly responsible position which was also clinically complex. It rejects the assertion that the complainant was better qualified than the successful candidate. The respondent states that at the time of the interview the successful candidate had twenty-eight years' service as a Staff Nurse - eight of which was as Senior Staff Nurse - a status conferred on nurses after twenty years' service. It adds that she had twenty years' experience of working in several areas of the respondent OPD and had previously "acted up" as CNM II on a number of occasions - indeed she had been acting up in the advertised position for a number of months prior to interview. The respondent states that in contrast, although the complainant claims to have eighteen years' experience nursing, based on the details contained in his CV this equates to approximately six years' full-time employment as a nurse. It adds that this arises due to the complainant's relatively short periods of employment as a nurse in Australia, Europe and the UK during the 1990's and the part-time nature of his employment with the respondent from May, 2002. The respondent rejects the complainant's assertion that he had three years experience as a CNM II (or equivalent). It adds his CV suggests that the majority of his experience was in Accident and Emergency environments and not OPD. It further states that his experience in the respondent's OPD was restricted to positions associated with Phlebotomy (taking of bloods) due to the small number of hours he worked - from November, 2005 he only worked 6.25 hours per week for the respondent. The respondent submits therefore that the successful candidate was significantly more qualified than the complainant for the post at issue.
4.3 The respondent states that the vacancy was advertised on the hospital's intranet site on 9 January, 2008 along with a job description and person specification. Three candidates applied for the post, the complainant and two females. These applications were screened by Ms. D - who is the Assistant Director of Nursing (ADON) with responsibility for the OPD - to ensure that they met the essential requirements for the post as detailed in the internal advertisement. The respondent states that as all candidates fulfilled these requirements and were invited to attend for interview. In the course of the Hearing Ms. D stated that she asked a female colleague (Ms. C) - who is an ADON over another clinical area of the hospital - to sit on the Interview Panel and passed both her own and Ms. C's names to the respondent's HR Department to select the third member of the Panel. Ms. W (the HR member of the Panel) detailed (at the Hearing) the efforts she made to secure a suitably qualified male member of HR to sit on the Panel but was unsuccessful in her attempts.
4.4 The respondent states that Ms. D and Ms. C met the day before the interviews to decide on the format and content of the questions which the candidates were asked. The respondent adds that these questions were asked of all three candidates. The respondent further states the members of the Interview Panel met on the morning of the interviews and agreed the structure of the interviews - i.e. who would ask which questions and also agreed the marking system which would apply at interview. It rejects the complainant's assertion that the members of the Interview Panel were not sufficiently qualified to conduct the interviews and provided details of the Panel members' relevant experience, qualifications and training. The respondent states that the successful candidate performed better at interview than the complainant and furnished detailed notes of the responses advanced by both at interview. It adds that all candidates were assessed across the same criteria and in the same manner. It further states that credit was given to candidates for relevant additional qualifications and that the American EMT qualification which the complainant possessed was not considered to be relevant for the post and was not therefore afforded any additional marks. The respondent (Ms. D) accepts that she spoke with the successful candidate prior to the interviews. She adds however that it was more by way of a general chat when the successful candidate informed Ms. D that she had applied for the post. Ms. D rejects the assertion that she coached or assisted the successful candidate in any way and states that her name was on the internal advertisement as a contact person - adding that it was normal practice that the relevant ADON would be named on the advertisement as a contact person. Ms. D denies the assertion that she declined or failed to return the complainant's calls - adding that she had no knowledge of any attempts on his part to contact her. In conclusion the respondent submits, notwithstanding its arguments that the complainant has failed to establish a prima facie case of discrimination that the selection process was conducted in an open and transparent fashion and provides a convincing non-discriminatory explanation for the complainant's failure at interview which is sufficient to rebut any inference of less favourable treatment that may arise.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts when it failed to promote him to the position of CNM II following interview in January, 2008. In reaching my decision I have taken into consideration all of the submissions, both oral and written, made to me by the parties as well as the evidence given by witnesses.
5.2 Section 85A of the Employment Equality Acts 1998-2007 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 he can rely in asserting the he suffered discriminatory treatment. It is only where such facts have been established and are regarded by an Equality Officer as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that the principle of equal treatment was not infringed. If the complainant fails to establish a prima facie case of discrimination his complaint cannot succeed.
5.3 In Davis v Dublin Institute of Technology Quirke J concluded that "a significant difference between the qualifications of the candidates together with a gender difference" may give rise to a prima facie case of discrimination. The complainant contends, in the first instance, that he was considerably more qualified than the successful candidate for the disputed post. Copies of both the complainant's and the successful candidate's CV's were made available to me as part of my investigation. It is clear from the successful candidate's CV that at the time the selection process was conducted she had approximately twenty-eight years' service as a Staff Nurse. From 2000 she was engaged at the level of Senior Staff Nurse - a status conferred on nurses who have completed twenty years' service in recognition of that achievement. The CV also details the successful candidate's employment in the respondent's OPD since 1988. In addition, the successful candidate had previously "acted up" as CNM II on a number of occasions in the OPD and was acting up in the disputed post for a number of months prior to interview. The complainant's CV detailed his employment from 1996 onward. Between the period October, 1996 and September, 2000 the complainant worked at several different hospitals in Australia, the Netherlands, London and Belfast for varying periods- but never longer than seven months continuously. The gaps between these periods of employment range from one month to a year (between May, 1999 - April, 2000 in one case). No details of the nature of the complainant's experience is given in his CV and in the course of the Hearing he confirmed that he was not engaged during this period in a dedicated OPD environment. He also accepted that his experience and actual working time in the respondent since 2002 was limited to part-time hours and that from November, 2005 he was only engaged for 6.25 hours per week. In addition, his nine month's employment in the Mater Hospital between September, 2000 and June, 2001 was in the Accident and Emergency Department. In the course of the Hearing the complainant also stated that he did not have three years' experience as a CNM II as asserted in the CV which he submitted to the respondent as part of his application for the post. The vacancy was in the respondent's OPD and having carefully considered the evidence adduced on this matter I find that the complainant was not better qualified than the successful candidate for the post in terms of his years of service and breadth of relevant experience.
5.4 The complainant also contends that (i) the Interview Panel was not suitably qualified or knowledgeable to conduct the interviews and that these shortcomings were reflected in the marks he received in each of the three main competencies under which candidates were assessed, (ii) the Interview Panel was all female and (iii) the successful candidate was coached by Ms. D - a member of the Interview Panel - prior to interview. He asserts that these factors constitute less favourable treatment of him. The Labour Court has held on many occasions "in the absence of any unfairness in the selection process or manifest irrationality in the result that it will not to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the selection board". The three members of the Interview Panel gave evidence at the Hearing as to their relevant experience, qualifications and training. Documentary evidence of the latter was also furnished. In the circumstances I am satisfied that the members of the Interview Panel were fully qualified to conduct the interviews.
5.5 It is accepted by the respondent that the Interview Panel comprised three females. In the course of the Hearing Ms. D stated that she asked Ms. C - another ADON in the hospital- to sit on the Interview Panel. She added that she did not seek to secure the services of a male ADON for the role because two were unsuitable - they did not have the necessary clinical experience as they work in the psychiatric services area of the hospital - and she was aware that the third was unavailable due to work commitments. She added that she forwarded both her own and Ms. C's names to the respondent HR Department to appoint a third member of the Panel from that Department. In the course of the Hearing Ms. W (the HR Official) gave evidence of her unsuccessful efforts to secure the services of a suitably qualified male member of the HR staff to sit on the Panel. The issue of gender balance on Interview Panels was addressed by the Labour Court in Mitchell v Southern Health Board when it held that its prior comments in Gleeson v The Rotunda Hospital on the issue could not be regarded as authority for the proposition that gender imbalance in an interview panel must, of itself, give rise to a prima facie finding of discrimination in every case. It is an authority which I readily apply to the instant case, notwithstanding that the respondent did not make any appreciable efforts to address the matter.
5.6 The final point raised by complainant concerns his assertion that the successful candidate was coached by Ms. D prior to the interviews and this gave the successful candidate an unfair advantage over him. Ms. D confirmed that she spoke with the successful candidate prior to the interview but rejected the assertion that she coached her in any way. Ms. D states that the conversation between them was informal in nature - the successful candidate informed her that she had applied for the post - and this arose because she was the successful candidate's Senior Line Manager. I note that the internal advertisement included Ms. D's contact details should candidates have enquiries. This option was therefore open to the all three candidates. Ms. D stated that she did not speak with the other unsuccessful candidate and rejected the complainant's assertion that she ignored his attempts to contact her. In the course of the Hearing the complainant stated that he made two attempts by telephone to contact Ms. D. He adds that the first time he spoke with Ms. D's secretary. He was unable to provide details of his second attempt and confirmed that he made no efforts to contact her on the e-mail provided on the internal advertisement. Ms. D replied that she occupies an office alone and that she does not have a secretary. I have carefully considered the evidence adduced by the parties on this point and I prefer the respondent's version of events. In addition, I note the complainant's confirmation that the questions which were submitted by the respondent were those asked of him at interview and that he was not asked any question(s) which he considered discriminatory on grounds of gender. I have also had regard to the evidence given by each member of the Interview Panel, independently of each other, as regards the contents of the responses received from the complainant and the successful candidate and their (the Panel's) deliberations about the candidates following interview-which is consistent with the contemporaneous notes of the interview furnished by the respondent. Having considered the totality of the evidence adduced by the parties on the aforementioned matters I am not satisfied that the selection process was tainted by unfairness to such a degree which would imply discrimination.
5.7 In the course of my investigation a number of issues arose which I feel it necessary to mention. However, I wish to emphasise that my comments should not be construed as any evidence of discrimination or unfairness on the part of the respondent. I also wish to add that I am reinforced in my view on this by my finding (above) that the complainant was not better qualified for the post at any level than the successful candidate. In addition, my comments do not form part of any enforceable decision and should be viewed as recommendations/ suggestions for amendments to the selection process operated by the respondent. The first point concerns the selection and appointment of the members of the Interview Panel. Best practice would suggest that all appointments should be handled centrally by HR to ensure suitability and gender balance on the Panels. Secondly, the inclusion of the ADON's contact details on the internal advertisement should be discontinued as it has the potential to lead to the perception of unfairness/discrimination -as it did in the instant case. Best practice would also dictate that the scoring matrix and questions for interview should be decided either centrally or if members of the Interview Panel are to be involved, these deliberations should take place before the members of the Panel receive the candidates' CV's and applications.
5.8 In light of my comments in the preceding paragraphs I find that the complainant has failed to establish any facts from which it could be inferred that he was treated less favourably on grounds of gender contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of these complaints and make the following Decision in accordance with section 78(6) of the Employment Equality Acts, 1998-2008 I find that the complainant has failed to establish a prima facie case of discrimination and his complaint cannot therefore succeed.
_______________________________
Vivian Jackson
Equality Officer
7 February, 2011