DECISION NO: DEC-E/2013/157
PARTIES
Julie Madden
(Represented by Gallagher Shatter Solicitors)
Vs
Irish Prison Service
(Represented by Chief State Solicitors Office)
FILE NO: EE/2011/346
DATE OF ISSUE: 19th of November, 2013
1. Dispute
This dispute involves a claim by Ms. Julie Madden that she was discriminated against by the Irish Prison Service, on the grounds of gender, in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008, in relation to her conditions of employment and promotion when she was unsuccessful in her application for an allowance carrying post in the Detail Office to which two junior male officers were appointed.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 18th of March, 2011 alleging that the respondent had discriminated against her on grounds of gender when she was unsuccessful in her application for an allowance carrying post in the Detail Office to which two junior male officers were appointed.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 19th of February, 2013 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 4th and 5th of July, 2013. Final information in relation to this matter was received on 27th of August 2013.
3. Summary of complainant’s case
3.1 It is submitted that the complainant was employed by the respondent, since 1985. She previously worked as a Prison Officer in Limerick Prison, Mountjoy Females, Mountjoy Males, Wheatfield , the Curragh and the Midlands prison.
3.2 It is submitted that the complainant applied for an allowance carrying post in the Detail Office of the Midlands prison on 13th of September 2010 and was informed on 21st of September 2010 that she had been unsuccessful in her application.
3.3 It is submitted that the complainant should have been appointed to the post due to her seniority and that the successful candidates were junior to her and were both male and that this amounts to discrimination on grounds of gender.
3.4 It is submitted that the complainant appealed the decision not to appoint her and was informed that she did not meet the criteria of ‘seniority and suitability’.
3.5 It is submitted that on 23rd of September 2010 the complainant was offered a position as a relief officer in the Detail Office without the payment of an allowance. The complainant was advised that she could train up for the position.
4. Summary of respondent’s case
4.1 The respondent submits that the complainant is a valued member of the prison staff whose competence is recognised and appreciated.
4.2 It is submitted that the selection criteria used for Detail office competition ‘seniority and suitability’. It is submitted that previous experience in the Detail office was considered under the suitability criterion and that the emphasis was on previous experience in the area together with seniority.
4.3 It is submitted that the complainant was not successful as she had no experience of working in the detail office.
4.4 It is submitted that the two successful candidates while junior to the complainant in overall service, had extensive experience in the Detail Office. It is submitted that the successful candidates had been engaged in that office on 119 occasions during the previous 12 months and the other had been engaged there on 32 occasions during the same period and on 177 occasions during the previous 24 months.
5. Findings and Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of gender, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to the failure to appoint her to the allowance carrying post of Detail Officer in the Midlands prison. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 It is a matter for the complainant in the first instance to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:
“(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 her or her, it is for the
respondent to prove the contrary.”
5.3 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a primafacie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
5.4 In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.
The Labour Court went on to say in that case:
"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."
5.5 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts provides:
6.—(1) For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is,
has been or would be treated in a comparable situation
on any of the grounds specified in subsection (2) (in this
Act referred to as the ‘‘discriminatory grounds’’)
Section 6(2)(g) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man,..
5.6 Competition for allowance carrying post in the Detail Office
5.6.1 The complainant advised the hearing that she was unsuccessful in her application for the allowance carrying post of Detail Officer. She stated that she was more senior than the two successful candidates who were both junior to her and male. The complainant advised the hearing that the usual criteria followed in relation to the selection of candidates for the filling of such posts is ‘seniority subject to suitability’. That is, the most senior person gets appointed unless they are deemed to be completely unsuitable for promotion for some reason. The complainant stated that in this case the more senior person did not get placed on the panel and that two junior male applicants were successful. It is submitted that this was due to the complainant’s gender.
5.6.2 At the hearing questions were put to the respondent in respect of the competition for the Detail Office post. The respondent advised the hearing that the successful candidates were selected by a Panel without interview. The respondent stated that the Selection Board was made up of three membersGovernor D, Chief Officer C and Mr. M. CO. D advised the hearing that the applications for this post consisted of half page documents which he and the other two members of the Board went through using the criteria of ‘seniority and suitability’. Mr. D stated that the ‘suitability’ looked at was ‘experience in the detail office’. The respondent has submitted that while the complainant is more senior to the successful candidates she did not have any experience in the Detail office and so did not fulfill the ‘suitability criteria’. Governor D went on to state that the complainant did not meet the criteria for suitability due to her lack of experience in the Detail Office and stated that there was thus no need to look at her seniority as she was not considered due to her not fulfilling the suitability criteria. In support of this Mr. D advised the hearing that the two successful candidates who happened to be male were deemed more suitable than the complainant due to their high level of experience in the Detail Office.
5.6.3 The complainant does not dispute that she had less experience in the Detail office than the two successful candidates but submits that it is the criteria which the respondent applied and the way in which the criteria was applied which resulted in her being unsuccessful. The complainant submits that she was subjected to a process which had not been applied to any of the candidates successful in promotion to other allowance carrying posts at the time based on ‘seniority subject to suitability’. The complainant advised the hearing that the accepted practice at that time for selection to such allowance carrying posts was ‘seniority with due regard to suitability’. This meant that the most senior officer was always appointed unless they had been deemed unsuitable for some reason. Mr. C, General Secretary of the Irish Prison Officers Association (POA) corroborated the complainant’s evidence and advised the hearing that this was the practice in place at the time of the competition in question.
5.6.4 The complainant argued that the criteria which the respondent alleged to have applied was not the normal criteria applied by such selection committees and also stated that another competition whose results were issued the same day had relied on the usual criteria of ‘seniority with due regard to suitability’. Mr. C of the POA gave evidence that the practice in place at the time was ‘seniority with due regard to suitability’. The respondent argued that the selection criteria used had been ‘seniority and suitability’. The respondent however did not dispute the complainants allegations that another competition on the same day had used the criteria ‘seniority with due regard to suitability’. The complainant at the hearing went on to state that the successful candidate in that competition had been a Mr. O who was the more senior applicant and who had no experience working in the role in question but who had succeeded a more junior candidate with considerable experience in the role. The respondent did not deny this and made no arguments in denial of this statement. It is the respondent’s position that the complainant was not successful due to her failure to meet the ‘suitability’ criteria which was defined as ‘experience in the detail office’.
5.7 Seniority followed by Suitability or Seniority and Suitability
5.7.1 It has been advanced that such allowance carrying posts are in the normal course of events filled on the basis of seniority subject to suitability. This produces a situation where the most senior candidate is considered for the post and unless completely unsuitable is then offered that post. In describing what can be considered as completely unsuitable Mr. C of the Prison Officers Association cited an example of where a person is widely known for other reasons to be unsuitable for promotion perhaps due to personal problems or where a person may be known to have a drink problem. Mr. C argued that it is only in such extreme circumstances that the most senior officer is not considered to be suitable for appointment to a post. There was no argument put forward and no evidence produced to suggest that the complainant had been deemed to be unsuitable for promotion. Mr. C went on to cite examples of instances where the more senior applicant was not appointed and where following the intervention of the POA such decisions had been reversed and the more senior person appointed to the post. Mr. C also added that this practice had since been revised and stated that after 2011 ‘seniority and suitability’ was applied for a period. He added that this has since progressed to fully merit based appointments.
5.7.2 The respondent submitted that a change in policy had resulted in, a change in the criteria to be applied in these selection processes and resulted in a move from ‘seniority followed by suitability’ to ‘seniority and suitability’. It emerged at the hearing that the practice of selecting individuals for posts based on seniority first and then suitability had been widely criticised and challenged and following various published recommendations has since been revised and was replaced for a period by ‘seniority and suitability’. The respondent at the hearing argued that the policy used at the time of the competition, the subject matter of this complaint, was ‘seniority and suitability’.
5.7.3 It emerged at the hearing that such change in policy only occurred in October 2011 a year after the results of the Detail Officer competition and thus was not in place at the time of the Detail office competition which took place in September 2010. I am thus satisfied from the totality of the evidence adduced in relation to this matter that the respondent cannot rely on this policy revision as justification for the reason the complainant, a more senior officer was not offered the post.
5.7.4 The respondent also advised the hearing that if it had done anything wrong the POA would have intervened on behalf of the complainant as they had intervened on other occasions on behalf of members. The POA advised the hearing that they had intervened on behalf of the complainant and had met with the respondent in order to raise the issue of gender discrimination. The POA went on to state that this matter had also been the subject of correspondence from the POA to the respondent and that it had raised the issue that the usual criteria of ‘seniority with due regard to suitability’ had not been followed in relation to the Detail Officer post and had also raised the issue of gender discrimination.
5.7.5 The respondent at the hearing stated that the POA had failed to follow up on this matter and denied that such communications had taken place, however, following the hearing it emerged through submissions from both parties that such communications and correspondence had taken place between the POA and the respondent but that it had been overlooked by the respondent at the time and had not been replied to by the respondent.
5.7.6 In addition, it emerged at the hearing that, of the two successful candidates Mr. G the most senior but the less experienced of the two candidates was ranked first and Mr. E the less senior but more experienced candidate was ranked second. Furthermore, the candidate who was ranked third had more experience than the candidate ranked second but is less senior to both candidates ranked second and first. This would suggest that seniority was in fact the more important of the two criteria used and was clearly applied to rank the successful candidates. This would also suggest that the complainant due to her being more senior than any of the successful candidates would have been ranked ahead of the successful candidates had the criteria of seniority been applied.
5.8 Suitability Criterion–Experience in the Detail Office
5.8.1 The respondent has submitted that the ‘level of experience in the detail office’ was used to assess candidates ‘suitability’. The respondent argued at the hearing that staff require a lot of on the job training to be fully competent to work in the detail office. The respondent when questioned conceded that there is no specific training course provided or required for working in the detail office.
5.8.2 The complainant advised the hearing that she had no experience in the Detail office prior to the competition in question but stated that on 23rd of September, 2010 two days after the results of the Detail office competition she was offered a post on the relief panel for the Detail office. It was suggested that she could be trained up to work in the Detail office and could then reapply for the allowance carrying position. The complainant added that the position on the relief panel for work in the Detail office would mean she would fill in whenever a staff member is absent from the Detail office. The complainant gave evidence that much of the work in the Detail office is computer based and of a clerical nature, she stated that she has very good computer skills and provided details of her qualifications and experience in many roles during her career in the prison service.
5.8.3 The respondent initially gave evidence that it could take a number of months for a staff member to become proficient to work in all areas of the detail office. Upon further questioning this was revised by the respondent to a number of weeks. The respondent conceded that this could be achieved with on the job training. Mr. C of the POA advised the hearing that it would take about 2 weeks to become proficient at working in the detail office. The respondent at the hearing did not give any reason why such on the job training could not be provided to a successful candidate and did not indicate that the vacancy to be filled was in any way urgent or in need of a fully experienced and fully trained staff member immediately. In addition, it emerged at the hearing that there is a relief panel in place from which the respondent can avail of staff members to work in the Detail Office as and when necessary.
5.9 Level of experience required
5.9.1 At the hearing I questioned Governor. D regarding the level of experience in the Detail office, required for the post and how it was quantified or measured. Governor. D stated that the level of experience of each candidate was not written down or documented at the time, but submitted to the hearing a table of figures with the level of experience of some of the candidates measured in the number of days assigned to work in the Detail Office. The respondent when questioned advised the hearing that this table was prepared recently and for the purpose of the hearing and only included some of the candidates who applied for the post. Upon questioning it emerged that this table contained details of the successful candidates only as well as those who had appealed the competition results. Any candidate who was unsuccessful but who didn’t appeal was not included in the table. The complainant at the hearing stated that the figures given in this table for the number of days she had worked in the detail office were incorrect and stated that she had never worked in the detail office but that the table indicated she had worked there on two occasions.
5.9.2 The respondent conceded that these figures in the table were not exact and did not represent the level of experience of all candidates who applied for the post only a selection. In addition it was clarified that this table was only prepared recently and for the purpose of the hearing. Governor. D at the hearing stated that the level of experience or number of days spent in the detail office by each candidate had not been quantified or documented at the time of the competition. When asked at the hearing how a decision was made as to who had more experience in the detail office Mr. D replied that he and Mr. M would ask Mr. C who had himself worked in the detail Office and so was able to tell the other Board members which of the candidates had experience there and how much and which candidates had no experience. This raises a question in relation to candidates whose experience in the detail office may have been prior to Mr. C’s time working there and how that could be quantified or recorded. In addition it leaves a scope for abuse as the level of experience is not quantified or measurable against each candidate but rather is roughly assessed by reference to Mr. C and his recollection as to how many days a candidate spent working in the detail office during his tenure there.
5.9.3 It was put to the respondent at the hearing that this was not an accurate or measurable means by which to assess the level of experience of candidates. There was no scoring matrix used or any accurate means of measuring or quantifying how any candidate scored as regards the criteria of ‘suitability’ which it is submitted referred to ‘previous experience in the detail office’. In addition it is clear that the criteria has already shifted from level of experience in the Detail office to level of experience in the Detail office during the tenure of Mr. C.
5.9.4 Governor D also advised the hearing that a candidate would be considered as having met the criteria if Mr. C advised the selection Board that they had a lot of experience in the Detail office. It is clear that this method for assessing the level of experience of candidates is not an exact science and leaves plenty of scope for human error and/or manipulation. In addition, it defeats the purpose of having three Board members if only one of them is in possession of the information regarding the level of experience in the Detail Office, of each candidate. This does not necessarily imply that the process would be more favourable to one candidate or candidates of one gender over another but does lead me to make inferences regarding the accuracy and transparency of the information on which the decision regarding ‘suitability’ was made.
5.9.5 In considering the selection process I have taken cognisance of the case of Client Logic Logic t/a UCAL -v- Kulwant Gill EDA0817 where the Labour Court held that
"Finally, the Court has previously held that in cases alleging an infringement of equality law in the filling of posts, it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result".
5.9.6 It is clear that the selection process in this case was not transparent and it is difficult to know what process was followed. I note the complainant submitted that if the usual criteria of ‘seniority subject to suitability’ was applied her seniority would have placed her above the successful candidates. In O’Halloran v Galway City Partnership EDA077, the Labour Court stated:
“Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (see Wallace v. South Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193 ). However the qualifications or criteria which is to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.”
5.9.7 I must also bear in mind the fact that the reason for an impugned decision may be conscious or subconscious and refer to the approach taken by the Labour Court in Nevins Murphy Flood V Portroe Stevedores Limited [2005] 16 ELRDet. No. EDA051
“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.
5.9.8 In addition given the fact that the complainant was the more senior applicant and given that it was the usual practice to select the more senior applicant I find it hard to believe that on this occasion a different criteria was applied given that the criteria of ‘seniority with regard to suitability’ had been applied in another competition run at the same time and the results of which were released on the same day as the Detail Office competition. Having carefully assessed all of the evidence in relation to this matter, I have found the complainant’s evidence more consistent than the evidence given by the witnesses of the respondent.
5.9.9 The application of the consistory method of promotion was considered in An Employee v A Government Department[2006] 17 E.L.R. 225. This was a case in which a recovering alcoholic claimed to have suffered discrimination on grounds of disability in the filling of promotional posts. The posts in issue were filled on the basis of seniority and suitability through a system of promotion operated by the Civil Service in which candidates were considered by a group of senior managers in what was known as a consistory. The Complainant in that case was the most senior applicant but he was deemed to be unsuitable for unstated reasons.
In considering the circumstances in which the probative burden shifts, the Court held as follows: -
There is no exhaustive list of factors which can give rise to an inference of discrimination. However in cases involving promotion, a lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can, in themselves, give rise to such an inference. In this case the process was wholly lacking in transparency and a candidate's chances of success were as much dependant on their principal officer's power of advocacy and his or her standing with their peers, as on the candidate’s ability to undertake the duties of the higher post.
5.9.10 In the present case it is clear that there was a lack of transparency in the selection process and that a candidates chances of success were dependant on Mr. C’s recollection of the amount of time each candidate spent working in the detail office during his tenure in that office. If it had been the case that a minimum number of days working in the detail office had been the criteria to be reached this at least would have been a quantifiable means of assessing which candidates met this criteria but as no such quantifiable yardstick was set it is impossible to state which candidates met or exceeded this criteria.
5.9.11 The Labour Court in Nevins Murphy Flood V Portroe Stevedores Limited [2005] 16 ELR Det. No. EDA051 made reference to the quality of evidence to be expected from a respondent who bears the burden of proof. In adopting the reasoning of the Employment Appeals Tribunal in Britain, the Court, in Barton v Investec Henderson Crosthwaite [2003] IRLR 322, held that
since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden
5.9.12 It is clear from the evidence submitted that there was a complete lack of transparency in the selection process used. It is clear from the evidence that the only document in front of the selection panel were the applicants written applications. I note that the respondent states that there was a selection criteria of ‘seniority and suitability’ as outlined above. It is surprising then that if there were criteria which had to be applied by each member of the selection board that there was no written record of it. It is also difficult to know how it was applied by the selection board given that there were no notes taken or marks awarded. Thus I cannot see how the respondent was able to determine that the complainant did not meet the ‘suitability’ criteria when such criteria was not clearly defined or in any way measurable. In addition, the decision regarding whether or not a candidate fulfilled the suitability criteria was completely reliant upon the word of Mr. C and his recollection of how much experience each candidate had in the detail office during his tenure in that office. Furthermore, it emerged at the hearing that the half page applications on which the Selection Panel relied to make their decision had been contained in an envelope which had since been misplaced and so could not be produced in evidence at the hearing.
5.9.13 There is also a dispute as to whether the criteria allegedly applied by the respondent was in keeping with the usual practice at the time or whether a deviation from the usual practice had occurred in order to ensure that the complainant was not placed at the top of the panel and ensuring that the less senior male candidates were placed ahead of her on the panel. I am satisfied from the totality of the evidence adduced in relation to this matter that the practice in place at that time was ‘seniority subject to suitability’ and that the fact that this practice was not followed on this occasion placed the complainant at a distinct disadvantage. The outcome of the non application of the usual practice in this instance was that the complainant was succeeded by two male candidates who if the usual practice of ‘seniority with regard to suitability’ was followed would have been ranked below the complainant. In addition the respondent has submitted that the complainant did not meet the suitability criteria for the post, but it is clear from my examination of the evidence adduced in relation to the suitability criteria that no clear or transparent process was followed regarding the assessment of candidates level of experience in the detail office so it is unclear how any decision was taken as to the suitability of one candidate over another.
5.9.14 In considering the circumstances of this case I am mindful of the Labour Court Determination EDA 1322 in the Board of Management, Our Lady of Good Counsel Girls National School Vs Maria Fitzgibbon which refers to the fact that once a prima facie case has been made out and the onus has shifted to the respondent, and states
This requires the Respondent to show a complete dissonance between the gender of the complainant and the impugned act or omission alleged to constitute discrimination.
5.9.15 Bearing in mind the totality of the evidence adduced in relation to this matter I am satisfied that the complainant in this case has established a prima facie case of discrimination on the ground of gender in relation to this matter which the respondent has failed to rebut. Thus I am satisfied that the complainant was discriminated against on the ground of gender in relation to this matter (the post in the detail office).
6. DECISION OF THE EQUALITY OFFICER.
6.1 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 find that
(i) 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 in relation to selection for the allowance carrying post in the detail office
6.2 Section 82(1) of the Employment Equality Acts, 1998-2011 sets out the redress which an Equality Officer can order when a complaint of discrimination is upheld. The section provides that I can order re-instatement or re-engagement, with or without compensation where a finding of discrimination has been made. It has been the practice of this Tribunal in cases where discrimination has been held to occur, to place the complainant in the position s/he would have been in had the discriminatory treatment not taken place. Therefore, in accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I order that
(i) the complainant be appointed to the allowance carrying position of Detail Officer, and that such appointment be backdated to take effect from the 21st of September, 2010 i.e. the date of the discrimination, with all consequential employment rights and entitlements including remuneration (with any necessary adjustments) and recognition of service.
6.3 In considering the redress in this case, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In making my award, I am mindful of the remuneration which the complainant was in receipt of at the relevant time, and the length of time she was employed by the respondent I consider an award of compensation in the sum of €20,000 to be just and equitable.
6.4 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination. This component of the award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
6.5 In addition I found above that the respondent’s selection process for the allowance carrying post in the Detail office was clearly deficient and did not comply with Equality legislation. Under Section 82(e) of the Acts, I order that the respondent to ensure that a transparent fair selection process is adopted in all future selections and to ensure that the selection panel is trained in the process and sets down in writing the criteria before embarking on the selection process, to adopt a marking scheme and the weighting given under each element and to ensure that notes are retained.
____________________
Orla Jones
Equality Officer
19th of November, 2013