DEC-E2013-133

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2013-133

PARTIES
Clare O’Dowd
(represented by O’Dowd Solicitors)
-V-
Sligo Young Enterprises Limited t/a Sligo Community Training Centre
(represented by Peninsula)

File Reference: EE/2012/301
Date of Issue: 31st October 2013

Keywords: Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment, 6(2)(a) – gender, Section 6(2)(c) – family status Section 8 –access to employment / promotion, Section 85A - prima facie case.

1. Dispute

This dispute involves a claim by a complainant that she was discriminated against by the above named respondent on the gender and family status grounds, in terms of section 6(1) & 6(2)(a) and (c), contrary to section 8 of the Employment Equality Acts in relation the selection for the post of General Manager.

Background

The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 28th May 2012, alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on the 13th June 2013 to me, Marian Duffy, 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 the complainant on the 31st October 2012 and from the respondent on the 16th January 2013. A hearing on the complaint was held on the 27th of June 2013 and the final documentation was received on the 7th of October 2012.

2 Summary of the Complainant's case

2.1 The complainant was employed by the respondent as General Manager of Sligo Community Training centre from March 2008 to April 2011. The Centre is funded by FÁS providing training and education for early school leavers. During her time as General Manager she took two periods of maternity leave. Her first child was born on the 24th of November 2008 and her second child on the 6th of September 2010 and her maternity leave was due to finish in April 2011. When her youngest child was 4 months old, her eldest child was hospitalised on a number of occasions for an ongoing medical condition. She requested permission to return to work from her maternity leave in the less demanding position of tutor for a period of a year with a view to resuming her position as General Manager in January 2012. She discussed it with the Chairman of the Board and she understood him to be agreeable to the arrangement. She wrote to him on the 6th of April 2011 requesting them to consider her request to return to work as an induction tutor.

2.2 However after the Chairman discussed it with the Board he came back to her stating that she would have to resign as General Manager and then she would be offered a fixed-term contract as a tutor to cover the maternity leave for another employee. She said that she felt she had no alternative because of the health of her child but to accept this position. She subsequently resigned her position as General Manager by letter dated the 11th of April 2011. The position of General Manager was filled by one of the male tutors who acted up during both periods of her maternity leave and he continued in that role after she returned to work as a tutor. The complainant was filling in for a person on maternity leave as agreed, however this contract was due to expire on the 31st December 2011. An advertisement seeking applications for the post of General Manager was published in November 2011 and by this time the complainant had a medical plan in place for her child, therefore she applied for the post. The advertisement specifically identified that applicants must have a recognised degree or equivalent and significant management experience.

2.3 The complainant was invited for interview and she was interviewed on the 8th of December 2011. However on the 15th of December 211 she was informed by letter that her application was unsuccessful. The successful applicant was the male tutor in the centre while she was General Manager who covered both her periods of maternity leave and subsequently acted up in the position since she returned to work as a tutor following her maternity leave. She is claiming that she was discriminated against on the gender and family grounds. She submitted that the advertisement for the post sought candidates with a recognised degree level qualification or equivalent and significant management experience and she met these requirements whereas the successful applicant did not have a degree.

2.4 The complainant stated that there were 3 people on the interview board including the Chairman of the centre. She submitted that during the course of the interview she was asked by one of the interviewers why she had resigned the previous April and why she was now applying for the same position again. She explained the circumstances of her resignation because her child’s health problems, which had since improved, and that she now had a management plan in place for her child worked out by the medical professionals. The complainant stated that the interview went very well as she had prepared very well for it and she could address all the issues and questions raised without any difficulty. During the interview she was taken through her CV and her experience and qualifications.

2.5 She stated that she was surprised with the outcome of the interview. She believed that she was better qualified than the successful male applicant. She therefore telephoned the Chairman of the Interview Board and asked him for the marking sheets but did not get them. She telephoned him again in January 2012, and then emailed him on the 1st of February 2012.

On the 7th of February the Chairman responded as follows:

"You did a very good interview and answered the questions in a very professional manner. A total of eight people were interviewed for the position. You finished in second place with a total of 87 points. The successful candidate finished with a total of 92 points. The person in eight place finished with a total of 58 points."

2.6 The complainant said that she was not happy with this response as she had not been provided with the interview assessment sheet. She therefore made a request seeking information held by the respondent on her pursuant to the Data Protection Acts, 1998 to 2003 on the 16th of February. She received some information although a copy of the interview assessment sheet was not included. On the 27th of March the complainant wrote again to the respondent seeking the interview assessment sheet including the assessment guidelines, but got no response. The complainant then served Form EE 2 dated the 23rd May 2012 on the respondent seeking information about the competition and the educational qualifications of the successful candidate. The complainant was not satisfied with the response received and sought further information. The complainant then referred the complaint to the Equality Tribunal on the 28th of May 2012.

2.7 The complainant’s solicitor submitted that she holds a level 7 degree in Social Science and therefore fully met the educational qualifications sought in the advertisement whereas the successful candidate did not. The complainant submits that having examined the marks awarded to her and the successful candidate, together with the fact that she met all the educational requirements for the post, but finished 2nd in the competition; although the successful applicant failed to meet the educational requirements; raises an inference that she was discriminated against on the gender and family status grounds in relation to the outcome of the said interview. The complainant’s solicitor referred me to the Equality Officer decision in the case of McGinn v. Daughters of Charity of St. Vincent de Paul (DEC-E2002-054). In that case the complainant contended that the marks allocated to her at the interview were not a fair and reasonable reflection of her superior qualifications and experience. The Equality Officer found that the interview board failed to recognise the complainant’s higher qualifications and greater experience, a decision which was upheld by the Labour Court. In relation to the scoring of the candidates by the interview board, I was asked to apply the Decision of the Equality Officer in the case of Murray v. Scoil Mhuire and the Department of Education and Science (DEC-E2005-015) where candidates were not marked individually by the members of the interview but marked by consensus after each interview. The Equality Officer found that the operation of a consensus marking scheme lacked transparency thus impacting on the objectivity and fairness of the process. I was also referred to the Labour Court decision in the case of McGinn v. Daughters of Charity of St. Vincent de Paul (ADE/03/3) which also considered consensus marking and commented adversely on it.

3 Respondent’s Case

3.1 The respondent denies that the complainant was discriminated against on either the gender or family status grounds in relation to the competition. The respondent submitted that her application was fairly considered in a transparent and non-discriminatory manner. The Respondent provides training, educational and employment related services for young people between the ages of 16 and 21 and runs courses such as computers, catering, sports and recreation, hairdressing, art, careers, sports activities, personal development, maths and communications. The trainees are early school leavers referred by FÁS. The respondent is governed by a voluntary Board of Directors and is funded by FÁS. The day to day management of the centre is the responsibility of the general manager.

3.2 The respondent submitted that the complainant commenced employment as a General Manager on the 31st of March 2008 and worked in that post until April 2011. During this time she took two periods of maternity leave from the 31st of October 2008 to 15th of June 2009, and again from 16th of August 2010 to the 19th of April 2011. While she was on her second period of maternity leave, the complainant requested to return to work as an induction tutor. The complainant in a letter of April 2011stated that her request "is based primarily on my son’s medical condition but there are other personal factors which has influenced my decision to seek approval for this role change." It is the respondent’s case that the complainant complained a number of times about being stressed in the role of General Manager and this was the reason for the request. It was submitted that there was no question that the complainant would be returning to the post as General Manager, after her position as tutor for maternity cover came to an end, as she had resigned from that position. Prior to the expiry of the fixed term contract the complainant tendered her resignation on the 8th of November 2011 and resigned at the end of that month as she was taking up another position.

3.3 The respondent advertised the General Manager position in November 2011. 16 candidates applied for the position 5 men and 11 women. The interview board had 3 representatives, one from FÁS, the Chairman of the Board, and Ms. A. of IACTO (Irish Association of Community Training Organisations). Seven applicants were shortlisted in accordance with the criteria. It was submitted that the qualifications of the candidates were only taken into consideration at the short listing stage and the complainant scored the highest overall under the criteria including 9 out of 10 for her educational qualifications at the short-listing stage. The seven applicants were interviewed on the 8th of December 2011.

3.4 The chairman of the respondent board also chaired the interview Board and he gave evidence at the hearing. He said that he got on well with the complainant and she was very good at her job and the Centre was running very well while she was General Manager. She had two periods of maternity leave and he was expecting her back to work in April 2011. The complainant contacted him and he understood from that conversation that the complainant wished to return in a different role if possible because of the illness of her child. He said that he could not remember exactly the details of the conversation that he had with her, but he explored ways of facilitating her as a tutor and they offered her the position to cover for a maternity leave. The complainant resigned her position as General Manager and returned as a tutor. She signed a fixed term contract which was due to expire at the end of December 2011 but tendered her resignation as a tutor in November as she had obtained another job.

3.5 The Chairman said that they advertised the position of General Manager in November 2011. He said that he was surprised that the complainant reapplied. He was chairman of the interview board and all the applications came to him. The selection board met and short listed the applications down to 7. The criteria used were supplied by IACTO. The complainant scored highest in the short listing and higher than the successful applicant in relation to educational qualifications. In relation to the interview he followed the criteria set out by IACTO. He said that he could not remember the questions he asked or the headings he explored with the complainant and he did not keep any notes. He said that it was the opinion of the interview board based on performance and the quality of answers that the successful applicant performed better than the complainant. He said that the successful applicant had extensive management experience in comparison to the complainant. He was involved with the centre for 8 years as a tutor and then acting up as General Manager for 2 periods of maternity leave and since April 2011 when the complainant resigned. He was a well known and these details were supplied to the Tribunal. The chairman stated that he had good management experience together with the management experience he gained in the centre; this is the reason he scored higher than the complainant under the management criterion.

3.6 Ms A said that the interview board met for about three quarters of an hour beforehand. She said that one of her roles is to ensure that the advertisement and interview templates of IACTO were followed and meet the criteria of the national agreements. For that reason she brought the interview template, a standard set of questions, and the interview assessment guidelines with her and that these were discussed prior to the interviews. She said that both candidates were very good, but the successful applicant was stronger under the headings motivation /enthusiasm, work experience/understanding of ESLs (Early School Leavers) and budget/financial & people management. She said that they scored the candidates after every 2/3 interviews and the complainant was interviewed just before the successful candidate, and they were both scored at the end of the successful applicant’s interview.

3.7 The respondent’s solicitor submitted that the complainant cannot establish that she was discriminated against on the family status ground as both the complainant and the successful applicant have the same family status. She further submitted that the main element of the complainant’s case is that her qualifications were disregarded but this is not a sound argument and refutes the assertion that the respondent disregarded its own criteria as set out in the advertisement. The qualifications were only considered at the short-listing stage and the complainant was fairly and transparently scored at that stage and got through to the interview. The complainant was facilitated when she requested to move to the induction role and this clearly demonstrates that the respondent does not discriminate on the grounds of family status or gender. Furthermore the respondent is a family friendly employer with 6 full-time female employees, all of whom are mothers and 3 of whom have been granted parental leave. I was referred to the jurisprudence of the Labour Court in the case of Melbury Developments v Valpeters and the application of Section 85A of the Acts. It was submitted that in applying the reasoning in that case the complainant has made "mere assertions unsupported by any evidence" and that in those circumstances the probative burden has not been discharged in accordance with Section 85A.

4. Conclusions of the Equality Officer

4.1 The matter for consideration is whether the respondent directly discriminated against the complainant on the gender and family status grounds in terms of sections 6(1) and 6(2)(a) and (c) of the Employment Equality Acts 1998 and 2011, in contravention of 8(1) of that Act. I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.
It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. This 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 the complainant 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."

4.2 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 prima facie case of discrimination on grounds of gender can be made. The Labour Court 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."

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."

4.3 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 (in this Act
referred to as ‘‘the gender ground’’),
(c) that one has family status and the other does not (in this
Act referred to as ‘‘the family status ground’’),"
Section 8 provides:
"8.—(1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,"

4.4 I will now examine the evidence in order to establish if there is any evidence to suggest that the selection process was applied in a less favourable way or in a discriminatory manner towards the complainant on the gender and family status grounds. The complainant has claimed that she was discriminated against on the gender and family status grounds in relation to the competition for general manager. The respondent denies that the selection process was discriminatory against the complainant. They submit that the successful applicant performed better at the interview than the complainant and given his experience he was selected for the post.
I note the complainant and the successful applicant score the following under the criteria applied to the interview:

4.5 In relation to work experience the complainant said that she should have scored higher than the successful applicant as she believes she has more relevant work experience. She said since 1999 she had worked in various roles which had supervisory and management responsibility.
The complainant work experience is as follows:
1991 to 1993 Nursing Assistant where she worked with young adolescences with severe intellectual disabilities
1993 -1996 trained as a Nurse
1996 -1999 Staff nurse in St. John of Gods in a day and residential service centre for people with intellectual disabilities who displayed challenging needs
1999 – 2003 Community Facilitator in a St John of God Centre with designated responsibility for the supervision and care and the development and implementation of programmes, in-service training and workshops for people with intellectual disabilities.
2003 – 2007 Head of Child Care in St Augustine’s School, a second level school for students with intellectual disabilities aged between 12 and 18.
February 2007 – July 2007 self employed delivering FETAC approved courses in Safety Management, First Aid, Manual Handling Health and Safety, Fire safety and Child Care Related Modules.
March 2008 – April 2011 General Manager in Sligo Training Centre
April 2011 – November 2011 Tutor in the above

4.6 The successful applicant work experience is as follows:
1990 – 2000 Lab Technician in Stiefel Laboratories
2000 – 2008 Sport and Recreation Tutor in Sligo Training Centre developing and delivering sport modules to trainees.
Sept 08 – June 2009 and again August 2010 to April 2011 acted up as General Manager of the centre during complainant’s 2 periods of maternity leave
April 2011 was appointed acting General Manager
Achievements and Interests: played professional sport
Head of Youth Development in a sports club
Member of the Garda Liaison Panel and he is highly involved with youth and Sports Clubs in the community.

4.7 I note that the complainant scored lower than the successful applicant in relation to budget/financial & people management. The Chairman stated that the successful applicant had extensive management experience and that he was involved in sports management. As this information was not on the successful applicants CV, I made further enquires. The Chairman provided information about the successful applicant’s management experience which was not mentioned on his CV. He also stated that he managed large budgets. He said that when you added up all the successful applicants management experience he had greater management budgetary experience that the successful applicant. Ms A said that the successful applicant’s career and outside hobbies including working with a youth development in a sports club that this gave her a very strong indication of his ability to work with and develop young people. I note that the successful applicant’s management experience which was not mentioned on the CV presented to the interview board, seems from the evidence of the Chairman to have been a big factor in comparing the complainant’s management experience against the management experience of the successful applicant. I was not provided with any information about the successful applicant’s management duties or how long he held these posts or evidence to support the contention he was managing large budgets.

4.8 I accept that the successful applicant worked as a manager during the complainant’s two periods of maternity leave and again following her resignation in April 2011 and this would have given him relevant management experience in the post he was applying for. However I am of the view that the complainant’s work and management experience was not given the same weight or consideration in the marks awarded as that given to the successful applicant’s management experience. I note that the complainant trained as a nurse in intellectual disabilities and had long experience working with and training and managing young people with intellectual disabilities and this included managing and supervising staff delivering services to the young people with challenging needs. I also note that the complainant ran her own business and delivered training and that she also occupied the position of General Manager for 3 years, where she managed budgets, until she stepped down due to the illness of her son. For the 8 months up until the interview she worked as a tutor with the respondent delivering training to young people between the ages of 16 and 21. I am satisfied therefore that the complainant’s management and working experience was not in any way inferior to that of the successful candidate and was greater in many respects than that of the successful candidate. I also note there was no complaints whatsoever about the complainant’s performance in managing the Centre.

4.9 The complainant submitted that she fully met the educational requirements for the post in that she had a degree and the successful applicant did not. The respondent states that once the applicants were shortlisted that qualifications had no further bearing on the outcome of the interviews. It was submitted by the respondent that the intent of the phrase "degree level qualification or equivalent" was to allow consideration of candidates who, although they might not have a degree may have other more relevant qualifications or extensive hands-on experience which would be of more value and relevance than a degree.
However the advertisement for the post stated inter alia that applicants should have a recognised degree level qualification or equivalent and significant management experience.

4.10 The complainant’s qualifications are as follows:
Qualified Nurse, Diploma in Management and Employee Relations NCI Bachelor of Arts Degree HETAC, Certificate in Training and Continuing Education NUI Maynooth, Manual Handling Instructors Course, Occupational First Aid FETAC Level 5. She also did basic and advanced supervisory courses while she worked in St John of Gods as well as a course with the Council on Quality and Leadership and the Irish Heart Foundation.
The successful applicant has the following qualifications: Certificate of Unit Achievement in Sport Massage, Exercise & Fitness Knowledge Unit Certificate, Qualified Occupational First Aider and Manual Handling, HETAC Single Subject Certificate in Counselling Skills and Practices, FETAC Level 6 Component Certificate in Business Management, Certificate in Training and Continuing Education NUI, Diploma in Redeployment in Adult Guidance Counselling awarded by National Counselling Institute of Ireland , Certificate in Integrating Literacy NUI. He also has a certificate from UEFA and is licensed in coaching.

4.11 I cannot accept Ms. A’s contention that the qualifications of the successful applicant were more relevant to the position than that of the complainant’s.
While it is a matter for the respondent to decide on the qualifications required for the position of General Manager; which included amongst other matters managing about 13 staff and managing the Training centre with up to 90 students; I note that the complainant has a BA Degree in Applied Social Studies and a Diploma in Management and Employee Relations. I would consider that these qualifications are relevant to the position of Manager. I note that Ms A. stated that the Certificate in Training and Continuing Education awarded by NUI Maynooth to the successful applicant was a very relevant qualification as the programme was developed in the 1990s particularly for CTC staff. She said that it was a highly valued programme and it was not clear to her that the course undertaken by the complainant in 2007 was the same programme. I therefore requested a copy of the educational certificates of both the complainant and the successful applicant and having seen them, I am fully satisfied that they both completed the very same course and both were awarded the very same certificate by NUI Maynooth. Ms. A also said that the successful applicant’s certificate in Integrating Literacy from the NUI Maynooth and his sport coaching skills are all about developing people, were highly valued and directly relevant the post. She also said that from the panel’s perspective the successful applicant had a number of FETAC level 6 qualifications that were highly relevant to the post. The Chairman stated that he would have considered that the successful applicant had equivalent qualifications as he held a number of level 6 qualifications on the National Framework and that he got credit for them in the scoring at the interview. I note that the successful applicant’s CV submitted to the interview board stated that he had a FETAC level 6 qualification in Occupational First Aid & CPR, however the certificate provided to me stated that he had passed an Occupational first Aid Course approved by the Health and Safety Authority, which does not mention a level 6 qualification. The successful applicant also states he had a FETAC level 6 Certificate in Business and his certificate states that he has a FETAC Component Certificate level 6 in Business Management. I note that FETAC offers both major and minor awards. Major awards are made up of 8 or more minor awards commonly known as modules or component certificates so the Business Management Component Certificate is a minor award. He also stated on his CV that he had achieved in 2005 a UEFA Diploma in Coaching and Business Management from the IFA in Northern Ireland but his certificate states that he successfully completed a UEFA Course for European ‘A’ Licence Coaches. It seems to me that the successful applicant has embellished his qualifications on his CV. Even accepting his qualifications as set out in his CV and then comparing them against the complainant’s qualifications, I cannot accept that the complainant’s qualifications as set out above were any less relevant to the post of Manager than that of the successful applicant. I am satisfied that they were more relevant. Given the evidence at the hearing, and the fact that the Chairman could not remember whether educational qualifications were considered by the interview board when assessing the applicants although he presumed that everything was considered including qualifications, I have to accept that these qualifications formed part of the overall assessment at the interview stage.

4.12 In considering this aspect of the case, I have applied the reasoning in O’Halloran v Galway City Partnership EDA077 where 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 are to be expected of candidates are 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."

I am satisfied from the above evidence that the complainant’s qualifications were not considered in the same light as the successful applicant’s qualifications. In applying the above test, I am satisfied that the complainant has raised an inference of discrimination on the gender ground in relation to this aspect of her case in that the complainant has a degree and fully met the stipulated requirement for the post and that degree is a higher qualification that the qualifications presented by the successful applicant. I find therefore that the complainant was passed over in favour of a less qualified male applicant and has established that she was treated less favourably than him in relation to this aspect of her complaint.

4.13 I note that the respondent stated that all the applicants were asked the same questions at the interview under the above criteria and in accordance with Interview Assessment Guidelines drawn up by IACTA. It is not clear from the evidence whether a list of questions were drawn up by the interviewers before the commencement of the interview. Ms. A said she is a very experienced trained interviewer and part of her role in IACTO is to ensure that interview boards follow the interview template drawn up by them. She said that when she arrived for the interview she had the list of questions which was going to be asked during the interview. She said that she wrote notes on her list of questions during the interview. I asked for a copy of the questions and the notes taken. The lists of questions were not provided initially, nor were the notes of the interview provided. The solicitor for the respondent stated in a letter that her " instructions are that the interviewers in question did not take notes in Ms. O’Dowd’s interview and further this is not their practice in general. As stated in evidence the scores are filled out after 2/3 candidates and in those circumstances all the relevant information is still fresh in the interviewers’ memories."

Following this the respondent did provide a list of questions which appears to be a generic list. The document was headed G.M. Interviews – Date: , but there was no indication on this list which of these were questions were asked at the interview and who asked them and in addition there were no notes written on the list as Ms. A told the Tribunal she did during the course of the interview. I have to accept therefore that there was no proper list of questions prepared for each individual interviewer by the interview board in advance of the interviews.

4.14 I note that the Chairman said that he asked the complainant about working as a general manager in the centre and he cannot recollect the answer the complainant gave and he did not take any notes. I am not satisfied that the complainant was asked the same questions as the other candidates as she was asked about working as the General Manager and also why was she re-applying for the job that she had resigned from in April 2011. I note that the respondent stated that the scores were filled out after every 2/3 candidates were interviewed and while the information was still fresh in their memory, the implication being that there was no need to take notes of either the questions asked or the answers given. In addition the interviewers did not score the candidates individually. There has been no valid reason presented in evidence for not filling out the score sheet immediately after each interview. The system of filling it out after every 2/3 interviews is, in my view, unfair and lacked objectivity and transparency and could give a perception of bias in favour of a particular candidate. I also not that the candidates scoring sheets were not marked individually by each interviewer and there is only one marking sheet signed by each interviewer. It was stated in evidence that the interview board had a discussion and then awarded marks under each heading by consensus. I was referred to the Equality Officer’s decision in the Murray cited above and to the Labour Court decision in the case of McGinn also cited above in relation to marking candidates by consensus. I note in the McGinn case that the Labour Court found that the manner in which the interviews were conducted and the procedures adopted in marking the candidates were "somewhat disturbing" and were of sufficient significance to raise a presumption of discrimination and to pass the burden of proof to the respondent. In the Murray case the Equality Officer stated: "given the operation of a marking system by consensus, this could have allowed one member of the interview board to considerably influence the outcome of the selection process. Furthermore, the consensus marking of candidates lacked transparency and I find that in totality an issue arises in relation to the marking of candidates."
The above reasoning is applicable to the conduct of the interviews in this case.

4.15 The evidence provided at the hearing was that there was a list of questions but now it transpires that there was none, and neither was there any contemporaneous notes taken. In a number of cases the Labour Court has stressed the importance of proper procedures and the keeping of records of interviews. In the Department of Health & Children and Gillen EDA0412 the Labour Court stated:

The failure to keep records has been commented on by this Court many times. A failure to keep records of interview processes, which of itself may not be discriminatory, when coupled with other factors, may lead a Court to infer that there has been discrimination.

In the case of Director of Public Prosecutions v Sheehan Det No. EDA0416 the Labour Court stated:

"Specifically, the use of assessments outside the interviews was lacking in transparency and Court cannot discount the possibility that subjective considerations might have entered the process. The failure of the respondent to retain interview notes constitutes a further departure from best practice which, combined with the other elements of the case, is supportive of the conclusion that a prima facie case of discrimination has been made out."

In Tesco Ireland v. Kirwan Det. No. DEE05 the Labour Court stated:

The failure of the respondent to retain interview notes constitutes a further departure from best practice which, combined with the other elements of the case, is supportive of the conclusion that a prima facie case of discrimination has been made out."

4.16 During the course of the hearing the Chairman said in response to questions about the interview process that he could not recollect some vital matters. While he said that every candidate was asked the same questions about their CV under each of the criteria he could not recollect the questions he asked or the responses given. Ms. A said that the complainant did well but the successful applicant did better at the interview. Therefore without the assistance of the questions and a written record of the interview the reasons for scoring the successful applicant higher than the complainant cannot be properly assessed. I note that Ms. A said in evidence that she had prepared a list of written questions for the Interview Board although they are not now available. It would appear from the Chairman’s evidence that he did not have a list of questions. I have therefore to accept that a written list of questions does not exist.

4.17 I further note that the complainant raised the fact that she was dissatisfied with the outcome of the interview process with the Chairman in or about the 15th of December 2011 and asked for her interview assessment sheet. She made a similar request in January 2012 but on both occasions she received no reply. She then submitted the request in writing on the 7th of February 2012 after which she received a response giving her the overall score and telling her she came second but she did not obtain the breakdown of her marks on the scoring sheet. Further correspondence ensued between the parties and the score sheet was eventually provided to her sometime in June 2012 and after the complainant’s solicitor had served Form EE 2 on the respondent and referred the complaint to the Tribunal. The respondent said that the delay in dealing with the complainant’s request was due to the fact the Chairman worked elsewhere and was not in the Centre on a day to day basis. I am surprised that if the complainant’s scoring sheet was available she was not provided with it in a timelier manner. While I accept that the Chairman worked elsewhere it is not credible that it took him over 6 months to deal with the matter given that Ms. A from IACTO, who was on the interview board, said it was her responsibility to ensure procedures were followed in relation to interviews and that she could have dealt with the matter on his behalf. I also note that the complainant’s solicitor requested further information and documentation in relation to the respondent’s response to Form EE 2 the respondent’s solicitor said that the complainant was "on a digging expedition to try and upset the appointment made" and failed to provide the information at that time.

4.18 In considering this case I have applied the jurisprudence of The Labour Court in the case of Portroe Stevedores and Nevins, Murphy, Flood Det. No. EDA051. The Labour Court was considering whether age discrimination had been established by the complainant in the filling of posts stated:

"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. Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a "significant influence" (see Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at 576)."

It is my view that this statement of the Labour Court is very relevant to this case. It may be that there was an inbuilt and unrecognised prejudice against the complainant, given the circumstance of her applying for the position. It was accepted that the complainant was asked during the interview why she resigned from the post in April 2011 and she gave the reasons and therefore all the members of the interview board knew of the reasons. It is my view that the fact that the complainant occupied the General Manager position for 3 years and during this period had taken 2 periods of maternity leave, and then sought a temporary accommodation to deal with her sick child, which was not granted, resulting in her resignation, had to be a factor which weighed on the mind of the selection panel, and in particular on the mind of the Chairman in the selection process. The Chairman’s evidence was that he was surprised that she had applied given that she had resigned and one of the reasons he believed related to the fact that she was stressed in the job. The complainant denied that she was ever stressed and she produced a medical certification stating that she had not been treated for stress. It is my view that if stress was mentioned by the complainant to the Chairman at the time she requested to temporarily step down as General Manager, it had more to do with the fact that she was the mother of two young children, one of whom had an illness which required hospitalisation. If the complainant was so stressed with her job it is very unlikely she would have applied for the very same job again particularly within such a short period of time. Furthermore if the complainant had voluntarily stepped down as General Manager it is unlikely she would be reapplying for the job again. In my opinion the respondent did not want to accommodate her with a temporary arrangement suited to her family needs in the short- term and asked for her resignation instead before agreeing to allow her to take up a temporary tutor post covering maternity leave.

4.19 On the basis of the foregoing and taking all of the above matters into account I am satisfied that the selection process fell short on transparency, objectivity, fairness and good practice and in the circumstances the complainant has raised an inference of discrimination on the gender ground in relation to the selection for the post. Therefore I am satisfied that the complainant has established a prima facie case of discriminatory treatment on the gender ground which the respondent has failed to rebut.

4.20 The next matter I have to consider is whether the complainant was discriminated against on the family status ground.
Section 6 (2) of the Act provides that the complainant has to establish that she was treated less favourably than a person who does not have a family status.
The definition of family status under Section 2 is:

‘‘family status’’ means responsibility—
(a) as a parent or as a person in loco parentis in relation to a
person who has not attained the age of 18 years,"

I note that the complainant has the same family status as the successful applicant as they both have children under 18 years old. I note that the complainant is the mother of two very young children while the successful applicant has teenagers. In my opinion the caring role of parents but in particular the caring role of mothers of very young children is much more demanding than parenting teenagers. However they both have the same family status as the Act does not distinguish between the ages of the children. Therefore that complainant cannot establish a prima facie case on this ground.

5. Decision

5.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that:
(i) the respondent discriminated against the complainant on the gender ground pursuant to section 6(2)(a) in terms of section 8 of the Acts in relation to the post of General Manager;
(ii) that the complainant has not established discriminatory treatment on the family status ground pursuant to section 6(2)(a)(c) of the Acts.

5.2 Section 82-(4) as amended of the Act provides that I can make an order for redress for the effects of the discrimination. I award the complainant the sum of €13,000 for the effects of the discriminatory treatment which is the maximum I can award under Section 82 as amended as this is a case of access to employment. The complainant was not in the employment of the respondent at the time the discriminatory treatment occurred.

5.3 Under Section 82(e) of the Acts, I order that the respondent to ensure that future interview panels are properly trained and to ensure that the procedures for assessing and marking candidates are applied in a fair and transparent manner and a written records of the interview is made and all other notes made are retained for a reasonable period.

____________________
Marian Duffy
Equality Officer
31st October 2013