EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012- 186
PARTIES
McMahon
(Represented by Mary Honan B.L. instructed by the Equality Authority)
V
Department of Justice, Equality and Law Reform
(Represented by Anthony Kerr, B.L. instructed by the Chief State Solicitor's Office)
File references: EE/2009/020
Date of issue: 19 December 2012
Headnotes: Employment Equality Acts, 1998-2008 - sections 6, 8 - gender - marital status- family status - age - race - conditions of employment - prima facie case - time limits.
1. Dispute
1.1 This dispute concerns a claim by Ms Sheena McMahon (hereinafter "the complainant") that she was subjected to discriminatory treatment on the ground of gender, marital status, age and/or race in terms of Sections 6 (2) (a), (b), (c) and (h) of the Acts and contrary to Sections 8 of the Employment Equality Acts by the then Department of Justice Equality and Law Reform (hereinafter "the respondent").
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on ,that she was discriminated against by the respondent on the grounds of race, age, marital status, family status and gender. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 27 June 2011, the date the complaint was delegated to me. Submissions were received on behalf of all parties. The complainant's representative subsequently advised in December 2011 that her claim in respect of family status was not being proceeded with. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 25 October 2012, earlier hearing dates having been adjourned due to the unavailability of either or both parties. Subsequent to the hearing (on 7 December 2012) the respondent's representative submitted an amended version of a table which corrected data previously furnished. This was copied to the complainant's representative in accordance with the normal procedures of the Tribunal.
2. Summary of the Complainant's Submission
2.1 The complainant who is employed by the respondent alleges that the respondent discriminated against her on the grounds of gender, marital status, age and race in relation to access to employment and promotion/regrading. The complainant alleges that the discriminatory act first occurred on 15 June 2005 and most recently occurred on 18 July 2008. The complainant submitted that that she always aspired to serving as a visa officer in an overseas visa office from even before she joined the civil service. In June 2002 she was offered a position as clerical officer in the civil service and fifteen months later she was successful in an Executive Officer competition and was then eligible to apply for overseas visa officer competitions when they arose. She applied on four occasions over the following five years and was unsuccessful on each occasion. She states that, while her education, experience and skills met or exceeded the required standard, she was not successful in securing a place on the panel. The complainant states that she was not given an adequate explanation as to why she was unsuccessful or why the successful candidate was more qualified than her. The complainant contends that the same criteria were not used for all candidates and that she was discriminated against because of her gender, age, marital status and nationality or perhaps a combination of some or all of these reasons. She states that she was born Irish but spent half her life in Canada and has retained a Canadian accent which she contends some Irish people find irritating.
2.2 Counsel on behalf of the complainant submits that the discrimination at issue is a form of continuing discrimination. Section 77(5) provides that the time limit runs from the date of occurrence of discrimination or 'its most recent occurrence'. It is submitted that the continuing discrimination in this case arises from a continuing 'state of affairs', a prejudice against the complainant on the grounds cited, and the continuing failure of management to address the issue. It is further submitted that the alleged discrimination in this case continued from 2005 up to and including the competition in July 2008. In Calder v James Finlay Corporation Ltd1the EAT (Scotland) found that an employment scheme (access to a mortgage subsidy) with discriminatory rules not only constituted discrimination against the complainant on the date she was refused a mortgage subsidy but constituted a continuing discrimination against her for the duration of her employment. The judgment of Lord Mummery in Hendricks v Commissioner of Police for the Metropolis2 is also cited. It is submitted on the complainant's behalf that there was a continuing climate, a continuing 'state of affairs', a continuing prejudice against the complainant in respect of which decisions were taken which impacted negatively on her. It is further submitted that the respondent was ultimately responsible for 'an ongoing situation or a continuing state of affairs' in which the complainant was treated less favourably than other employees. It is submitted that there is no other plausible explanation for the complainant's experience of the competitions at issue and contends that the documentation relating to the selection process was meagre and utterly inadequate.
2.3 Counsel further submits that the Equality Officer should take account of the following in reaching her conclusions
- the perceived 'difference' of the complainant with regard to race and age
- the complainant possessed experience and qualifications consistent with, relevant to, and exceeding the job specifications at issue
- the dramatic divergence between the marking of the complainant in the competitions at issue and her extremely high marks and positive assessments in the HEO competition 2007; that interview process was held on 27 October 2008 and was far more challenging, wide ranging and thorough than the inadequate process employed in the competitions at issue
- the complainant's contemporaneous notes of the interview for the competition in July 2008 shows that many of the questions asked were utterly irrelevant and of obscure motivation in an interview situation
- the relevant experience of the complainant both in the Department of Justice and also in Canada and Eastern Europe was not explored with the complainant at interview which placed her in a disadvantaged position.
2.4 Counsel submits that it is difficult to understand why factors such as assessment by supervisors, who assessed the complainant as exceptionally well qualified, and experience were not factors given significant weight by the interview boards given that these are relatively objective criteria unlike the criteria used by the board. Counsel further submits that it is not credible that the successful candidates could have had greater experience and skills than the complainant. Counsel contends that the general pattern of the complainant's outcomes despite her obvious excellent experience and suitability suggest an irrational selection process. Counsel contends that the interview board in July 2008 clearly had not received adequate training. It failed to adhere to the Commission for Public Service Appointments (CPSA) Code of Practice as found by the CPSA in its subsequent review. The CPSA found that the notes of the board members fell considerably short of proper interview notes. Counsel adds that while board members denied to the CPSA review that the complainant had been told that she was 'too well qualified' for the job, the handwritten notes of at least two of the interview members include the notation "too qualified".
2.5 Counsel submits that the complainant is covered by the race ground because of a nationality and/or national origin and/or ethnic origin which was imputed to her. The complainant has spent almost half her life in Canada, obtained her academic qualifications in Canada and speaks with a Canadian accent. The assumption of Canadian nationality and/or national origin and/or ethnic origin in respect of the complainant is a reasonable one in the circumstances. The fact that the complainant is of Irish nationality and of Irish national and ethnic origin does not negate the perceived difference in question. Counsel submits that the less favourable treatment of the complainant in respect of the competitions at issue and the difference of 'race' raise a presumption of discrimination under the 1998 Act which must be rebutted by the respondent pursuant to Section 85 A and the authorities cited.
2.6 In relation to the claim of discrimination on grounds of age, the complainant contends that Ms A, the chair of the interview board in October 2006 (and the interview board in July 2008) stated to the complainant during a feedback meeting in February 2007 that 'young people nowadays' are so much better at expressing themselves and describing their skills and talents and that the complainant looked 'dull' by comparison. Counsel alleges that this indicates a prejudice against the complainant on grounds of her age. The complainant stated that in the competition in February 2008 the two successful candidates were younger than her. In the July 2008 competition she states that most of the successful candidates were under 35. In relation to the competition in July 2005 the complainant contends that all successful candidates were young people.
In relation to her claim of discrimination on grounds of gender, Counsel for the complainant submits that in the February, 2008 competition three candidates were deemed suitable, the complainant and two male colleagues, the two male colleagues were successful. The complainant submits that it is not credible that two younger male candidates were more suitable than her, given her experience and assessments.
In relation to her claim on grounds of marital status, Counsel submits that in respect of the July 2008 competition of the fifteen successful candidates 80% were single. The complainant states that she had noted her family status as 'divorced' on her application.
2.7 In summary the complainant contends that the pattern of rejection for the competitions at issue was influenced by discriminatory prejudice against her on grounds of race, age, gender and marital status. It is further submitted that the pattern of failure on the part of the complainant is inexplicable otherwise than by reference to discriminatory prejudice, given her experience and suitability.
3. Summary of the Respondent's Submission
3.1 The respondent states that the competition processes concerned did not involve promotion or re-grading but appointment to posts abroad in the same grade (albeit posts that attracted certain expense allowances - living allowances and hardship allowance). It is the respondent's case that the complainant's scores following assessment at interview in three of the competition did not warrant her placement on the panel for the position of visa officer in an overseas Department of Justice visa office. In the case of the other competition, in February 2008 which involved a short-term assignment, selection was made by senior management having regard to suitability and experience in the visa area. In all cases the respondent is satisfied that the complainant was not discriminated against on the ground of gender age marital status or race.
3.2 Without prejudice to the foregoing the respondent submits that only the complaint in respect of the internal competition under Office Notice 22/2008 has been lodged within the time limit prescribed by section 77(5) of the Employment Equality Act, 1998 which requires that a claim may not be referred after the end of the period of 6 months from the date of the occurrence or its most recent occurrence of the alleged act of discrimination. In the case of the complainant this occurred, allegedly on the 18 July 2008. The respondent submits that as regards the competitions under Office Notices 26/2005, 31/2006 and 4/2008 results of which were communicated to the complainant on 25 August 2005, 9 November 2006 and 10 March 2008 respectively the complaints are out of time and should be dismissed for that reason.
3.3 The respondent states that the complainant was appointed as a Clerical Officer on a two year probationary period on 8 July 2002. She was then appointed as an unestablished Executive Officer from an open competition conducted by the Public Appointment Service (PAS) with effect from 6 October 2003. She was assigned to the Office of the Refugee Applications Commissioner (ORAC). Her final probationary report in September 2004 was positive and she was certified as qualified for appointment to Executive Officer with effect from 6 October 2004. Subsequently in response to Office Notices 26/2005 and 31/2006 the complainant applied for a Visa Officer post in June 2005 and in October 2006. Appointments from these competitions were made following competitive interviews. All of the notices for these competitions specified that candidates were required to be capable of dealing with all aspects of work of Executive Officer level. Openness to other cultures and capacity to live and work outside Europe was identified as advantageous. No specific academic qualifications were required. The complainant was assessed by the interview boards on the same basis as all the other candidates interviewed and she was not successful. In February 2008, an urgent requirement arose to fill posts in New Delhi and Abuja on a temporary basis. Due to the urgent and temporary nature of these assignments, these posts were advertised as an interim arrangement, by agreement with the relevant staff association, pending the running of a competition late in the year. There were ten applications. Three candidates were deemed eligible (two males and one female, the complainant). The complainant was not successful. Selection was made by senior management having regard to suitability and experience in the visa area.
3.4 In relation to the June 2008 competition the respondent states that the complainant applied for a visa officer post in response to office notice 22/2008 (internal competition for assignment to posts at EO/Visa Officer at Embassies abroad). The notice included the same reference to openness to other cultures and knowledge of visa matters as were contained in previous notices. No specific academic qualifications were required. The board was made up of Ms A, an Assistant Principal in the Irish Naturalisation and Immigration Service (INIS), who acted as Chairperson, Mr B, a Higher Executive Officer attached to the Department of Justice, Equality and Law Reform and Ms C, a Higher Executive Officer attached to the Department of Foreign Affairs. There were 29 applications. Six candidates did not fulfil the essential requirements. One candidate withdrew leaving 22 candidates for interview (12 male and 10 female). The respondent submitted in evidence a table setting out information on each candidate's nationality, family/marital status, age and gender. The respondent states that some of the information carries a "health warning". Personal information such as nationality, marital status and family status is based on information volunteered by staff and the records may not necessarily reflect either the current position or the position at time of interview. It a staff member marries separates or has children there is no obligation on them to notify the Department. The respondent states that interviews took place between 8 July 2008 and 18 July 2008. A total of 15 candidates (seven male and eight female) were considered by the Board to be suitable for the post. The complainant was not among the successful candidates. The respondent contends that the interview board was seeking a real team player for the position. While the complainant demonstrated leadership and independence these were not the primary skills sought. Although her CV highlighted team participation at several levels this was not evident throughout interview and this failure resulted in her failure to reach the qualifying mark.
3.5 Subsequent to this competition on 7 August 2008 the respondent states that the complainant sought a review under section 8 of the Commission for Public Service Appointments (CPSA) Code of Practice that there had been a breach of the Commission's Code of Practice. An initial review was carried out by a former Principal Officer from another Department. He found no breach of the Code of Practice. On 30 September 2008 the complainant sought a further review by way of appeal to the CPSA. On 17 February 2009 the CPSA issued its report. The respondent states that of the five specific areas of complaint the CPSA concluded that breaches of the Code of Practice had taken place in two areas - the notes taken by the board members fell considerably short of what was required and the fact that the internal review was judged not to have conducted in line with the Code, albeit unwittingly.
3.6 The respondent states that the complainant was unsuccessful in her applications for the position of visa officer in an overseas Department of Justice office because her assessment at interview in three of the competitions did not merit her being placed on the panel. In the case of the other competition the selection process that was applied was in conformity with normal practice for such a short term assignment. The respondent notes the complainant's contention that an alleged divergence between the marking of the complainant in the competitions at issue and the marking of her at stage 2 in an interdepartmental competition for promotion to Higher Executive Officer in 2008 supports her contention of discrimination. The respondent submits that the letter giving her feedback for this HEO competition states that the interview and presentation exercise were designed specifically for this competition and her performance does not necessarily provide a measure of how she would perform in other competitions or assessment situations and that her performance in the process should not be used as an indicator of her potential for another job.
4. Conclusions of the Equality Officer
Jurisdictional Issues- Time Limits
4.1 It is submitted by the respondent that the complainant's claims as regards the competitions under Office Notices 26/2005, 31/2006 and 4/2008 (the results of which were communicated to the complainant on 25 August 2005, 9 November 2006 and 10 March 2008, respectively) are outside the time limit prescribed by s. 77 (5) (a) of the Act and are therefore statute barred. It is submitted on behalf of the complainant that that all four competitions constitute a continuum of discrimination from 2005 up to and including the competition in July 2008 and that therefore the time limit under s.77 (5) (a) has been complied with.
Section 77(5) (a) of the Acts provides as follows:
"Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates."
It is clear that section 77(5)(a) provides that where there has been a series of incidents of alleged discrimination which constitute ongoing discriminatory treatment, the time limit runs from the last such incident. A claim about a series of incidents is in time, provided that at least one of the incidents has occurred within six months before referral of the complaint.
4.2 In considering the issue of whether the matters complained are all instances of separate events, or whether they constitute a form of continuing discrimination I have taken into consideration the Labour Courts determination in County Cork VEC Vs Ann Hurley3 where the Court found as follows
"It was clear from the written submission filed by the Respondent that it would be contending that many of the incidents relied upon by the Complainant as constituting victimisation occurred outside the time limit prescribed by s. 77 of the Act and were therefore statute barred. The Court suggested that this point could be considered as a preliminary matter. In that regard the Court suggested that occurrences outside the time limit could only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make all of them part of a continuum.. "
In relation to the jurisdiction issue I advised both parties that I proposed to follow the procedure that the Labour Court followed in the above referenced determination4. If the occurrence within the time limit was found not to have involved discrimination in terms of the Acts, the complaints relating to the earlier occurrences could not be entertained having regard to s.77(5) of the Act as the most recent occurrence would have been outside the time limit. I advised the parties that I intended to proceed to a hearing and at that hearing hear evidence in relation to the competition held in July 2008 which was within the time limit. I would also hear arguments in relation to whether the four competitions are all separate events or constitute an ongoing act or a continuum of discrimination within the meaning of Section 77.
Competition (office notice 22/2008) held in July 2008
4.3 In reaching my decision, I have taken into account all of the submissions, made to me in the course of my investigation as well as the evidence presented at the hearing.
At the hearing the complainant's representative stated on her behalf that no claim on the ground of gender discrimination was being made in relation to the competition held in July 2008. Consequently the issues for decision in relation to this competition are whether or not the respondent discriminated against the complainant on the grounds of age, marital status and race in terms of section 6 of the Employment Equality Acts, 1998 to 2008 when it failed to place her on the panel for appointment to the post of overseas visa officer.
4.4 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 from which discrimination may be inferred. 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. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he/she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him/her, his/her case cannot succeed.
4.5 The complainant's case is that her assessment from her supervisors was so positive and her experience and qualifications so extensive that she should have been placed on the panel. Counsel for the complainant contends that the failure to place her on the panel was unfair and that this unfairness linked with a difference in age, race, and/or marital status raises an inference of discrimination. At the hearing the complainant confirmed that at the time of the competition she was 60 years old, divorced and held dual Canadian and Irish passports. She stated that immediately after the interview she wrote down her notes of the interview which she had submitted in evidence. She stated that her interview initially went well. The chairperson said that as she knew her she would leave it to others to ask questions. Mr B asked her about her election observer work and she told him about it. He said she would not be able to do this work when she was a visa officer and she said that that was not a problem as she volunteered for it and did not intend to volunteer if she was successful. The complainant contended that Ms C then asked "abroad you are representing Ireland and if you speed down a street at 120mph or get drunk and fall down the front steps of a building it would be in all the papers the next day ' Irish diplomat drunk and disorderly' how would this impinge on your social life?" The complainant stated that she answered that she would not have to change her social habits to fit with the high standards of representing Ireland as she was used to this in her election observation work. The complainant stated that she felt that this question was rather antagonistic. She understood from other candidates that they had not been asked this. She contended that the chairperson asked her did she get bored easily and at the end of the interview stated that she was too qualified to do essentially a clerical officer job. The complainant stated that she was taken aback by this comment at the end of the interview. The complainant stated that during the interview she remained calm, respectful and responsive. She answered all the questions put to her and tried to be succinct.
4.6 I note that the CPSA concluded in its review of the interview process that breaches of the Code of Practice had taken place in relation to the notes taken by the board members which fell considerably short of what was required. These notes were furnished to me in evidence and they are by no means comprehensive, giving little information in relation to the questions asked, the answers given or how the assessment of candidates was arrived at. However the absence of such information does not automatically imply that discrimination has taken place. As previously outlined in a number of Equality Officer5 and Labour Court decisions6, my function is not to undertake my own assessment of the candidates or to substitute my views on the relative merits of the candidates for those arrived at by the interview board unless there is clear evidence of unfairness or manifest irrationality in the result.
4.7 Two members of the interview board, Mr. B and Ms C attended the hearing and gave evidence. Ms. A the chairperson of the interview has retired. The respondent stated that as far as they were aware she was out of the country and they did not have contact details for her. I heard evidence from Ms C that prior to the interviews the respondent gave them the criteria under which the applicants were to be assessed -
ability to work as part of a team,
good judgement/strong decision making skills,
good communication skills and customer focus,
ability to work on own initiative and show commitment
all round experience of value.
In her evidence Ms C stated that it was decided prior to the interviews the areas which each of them would deal with. She was from the Department of Foreign Affairs and was familiar with the work and demands of foreign postings. Candidates had been supplies with information on the areas where the posts were located. Her role was to ask questions relating to the work of the post and to emphasise the 'hardship' element of the post, the reasons why they were so considered and to ask if they had considered this. It was important that applicants were aware of the issues that might arise. They were at pains to ensure that candidates were aware that this was not a 'nine to five' job and, while these posts were graded at Executive Officer because of their location, they were essentially Clerical Officer posts. Essentially all of the candidates as Executive Officers would have been too qualified for them In the interview they wanted to ensure that candidates were aware that these were routine clerical jobs and were prepared to take this on and to deal with the difficult aspects of working in 'hardship posts'. They also wanted to ensure that successful candidates could work well as part of a team in a small office. In the complainant's interview, the chairperson, having welcomed her, passed the questioning to Mr B and herself as the chairperson knew the complainant. Mr. B started the interview asking about the complainant's experiences abroad. Ms C stated that the complainant appeared reluctant to open up. She stated that the complainant appeared quite hostile to both Mr. B and herself. She herself was taken aback at the complainant's attitude. She came across as a reluctant candidate, both Mr B and she were trying to draw her out but she did not answer the questions she was being asked. Ms C did not recall putting any questions or references to speeding at 120mph to the complainant. She stated that she did outline to all candidates how staff were expected to abide by local laws and referenced Friday night social situations and asked if they would have difficulties with this. She stated that to the best of her recollection the chairperson did not tell the complainant that she was too well qualified. At the end of the interview when the chairperson asked if the complainant had anything further to say the complainant started talking about money, property and pension issues and the chairperson said that this was going into areas that they could not cover and ended the interview. Ms C stated that each board member completed individual scores for candidates under each heading when each interview ended. Her recollection was that the decision in relation to the complainant was unanimous; she had not interviewed well and had not come across as someone who would work well as part of a small team.
4.8 In his evidence Mr. B stated that at the interviews he would bring candidates in and introduce them to the panel. When he introduced the complainant the chairperson said she knew her and would step away from the interview process. He then started the interview. He asked the complainant about her overseas work and her election observer experience and immediately thought he had said something wrong by her reaction. She seemed to him to be put out or annoyed by his question in relation to her election observer work. He felt that he had upset her somehow. When he handed over to Ms C he felt that the complainant did not listen to Ms C's questions. The complainant kept talking as Ms C was speaking. He stated that Ms C questioned all candidates if they were aware that they were representing Ireland at all times and how inappropriate social behaviour might affect this. The witness stated that he had no recollection of the chairperson telling the complainant that she was 'too qualified'. He stated that the interview board were concerned at ensuring that the candidates were aware of the routine nature of the work and that they understood that while it was graded at Executive Officer level it was actually Clerical Officer work. He stated that the complainant did not come across as a team person at interview and an ability to work as part of a team was essential in the job. He stated that prior to the interview that he had expected the complainant to be very good as her CV looked good but that she did not come across well at interview. In response to questioning he stated that he did not find the complainant polite or friendly at interview. He felt that there was a tension from early on the interview and that she seemed to be put out by his questions on her overseas election observer work. He stated that the members of the board completed their individual assessments of candidates immediately after each interview. He stated that their assessments of the complainant were all similar and the marking of the complainant was a unanimous decision.
4.9 The complainant claims that the marks awarded by the interview board reflect a bias against her on grounds of age, marital status and race. In its submission the respondent submitted a table which shows the ages, marital status and nationality of successful candidates who were interviewed for this position. In relation to her complaint on the grounds of age the complainant submits that younger candidates were preferred and that there are a high number of younger people on the panel. The table shows that of the 22 people interviewed, 17 people of these were less than 35 years, a participation rate of 77%. Three people interviewed were over 55 years of age, a participation rate of 14%. 15 candidates were successful and placed on the panel, 13 of whom were under 35 years of age, (87% of those successful) and two were both 59 years of age (13% of those successful). The evidence available does not support the complainant's contention that the results of the interview board indicate a bias against older candidates. 87% of successful candidates were under 35 as against a participation rate for that age cohort of 77%. 13% of successful candidates were over 55 years as against a participation rate for that age group of 14%. In my view the statistical evidence does not support a claim of discrimination on grounds of age.
4.10The burden on the complainant is increased because the statistical evidence does not support a claim of age discrimination. The two interview members gave cogent evidence that the complainant did not perform well at interview. Both individuals separately gave evidence that the complainant appeared to be disconcerted by the questioning of Mr. B on her election observer experience. In this regard I note that when the complainant first raised issues regarding the conduct of this interview to the respondent's Personnel Officer on 7 August 2008 she stated that the members of the interview "had clearly been primed to put hard questions to me regarding my overseas election experience". In reference to Mr. B she stated that "he seemed to have his mind made up that I was unsuitable for that reason." The complainant did not raise any issues regarding possible discrimination on any of the stated grounds other than a reference to Ms C's questioning being possibly related to her marital and family status which I will deal with separately. From the evidence available to me it would seem that the complainant had some difficulty dealing with the questioning of Mr B on her election observer experience. For an inference of age discrimination to arise the complainant would have to show a nexus between the protected ground and the treatment. No such inference can be drawn from the facts of this case. I consider that complainant has failed to establish a prima facie case of discrimination on grounds of age.
4.11 In relation to the complainant's claim on grounds of marital status I note that the complainant is the only one of the 22 candidates that is recorded as divorced. 16 of the other candidates are single and the remaining is recorded as married. I note that these are all self notified to the respondent on its HR systems and the interview board would not have been notified of these. There was no reference in the complainant's application to her marital status. She simply stated that she had no dependants, young or old and was free to travel. The two members of the interview board both separately gave evidence that they were unaware of the complainant's marital status. No arguments were put forward on behalf of the complainant showing a nexus between this protected ground and her failure to be placed on this panel. Notwithstanding that it is disputed by the respondent that the question regarding "speeding at 120mph..." was put to the complainant by Ms C, even if this question was put as alleged and Ms C was somehow aware of the complainant's marital status I can find no nexus between this question and the complainant's marital status. I consider that complainant has failed to establish a prima facie case of discrimination on grounds of marital status.
4.12 In relation to the complainant's complaint on grounds of race, the complainant stated that she was the only candidate who had dual Irish/Canadian nationality. Ms C confirmed at the hearing that it would have been assumed that the complainant was of Irish nationality as the candidates would have to be holders of Irish passports in order to obtain a diplomatic passport which would be provided with the posting. It was evident from the complainant's application that she had spent some time in Canada. I note that the complainant has not raised any complaints regarding any reference to her nationality or imputed nationality in the interview process. I note that no arguments have been put forward on behalf of the complainant showing a nexus between her nationality or dual nationality and her failure to be placed on the panel. I consider that complainant has failed to establish a prima facie case of discrimination on grounds of race.
4.13 I conclude that no act capable of constituting discrimination occurred in the period of six-months ending on the date on which the complainant referred her claim under the Employment Equality Acts. Accordingly, as the occurrence within the time limit was found not to have involved discrimination in terms of the Acts, the complaints relating to the earlier occurrences (notwithstanding whether or not they are separate events or a form of continuing discrimination) cannot be entertained having regard to s.77 (5) of the Act as the most recent occurrence would have been outside the time limit.
5. DECISION OF THE EQUALITY OFFICER
5.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision.
(i) The respondent did not discriminate against the complainant on the age, marital status or race grounds pursuant to section 6(2) of the Acts in terms of her conditions of employment contrary to section 8(1) of the Acts.
_____________________
Deirdre Sweeney
Equality Officer
19 December 2012
1[1989] IRLR 55
2[2003] IRLR 96
3EDA1124
4 EDA1124
5Equality Officer Decision DEC -E2002-046 McCormick v Dublin Port Company
6Labour Court determination 0416 Sheehan v Director of Public Prosecutions & Labour court determination EDA077 Galway City Partnership v O'Halloran