DEC-E2016-066

EMPLOYMENT EQUALITY ACTS 1998-2015

Decision DEC – E2016 – 066

PARTIES

Ms A (represented by Darach McNamara B.L., instructed by Ferrys Solicitors)

and

A Social Enterprise (represented by IBEC)

File Reference: et-159750-ee-15

Date of Issue: 20th April 2016

Keywords: gender – access to employment – agent – vicarious liability – S. 15(2) – interfering with candidate in a manner to make her likely to fail interview situation – even identical remarks are “heard” differently by gender – Schumacker v. Finanzamt Köln-Altstadt (C-279/93) – Von Colson v. Land Nordrhein-Westfalen (C-14/83) – awards need to be “proportionate, effective and dissuasive”.

1. Claim

1.1. The case concerns a claim by Ms A that A Social Enterprise discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2011, in terms of access to employment.

1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 19 September 2015. A submission was received from the complainant on 9 December 2015. A submission was received from the respondent on 4 February 2016. On 23 February 2016, in accordance with his powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 14 April 2016.

2. Summary of the Complainant’s Written Submission

2.1. The complainant submits that she is a highly qualified mediator, trainer, facilitator and life-skills coach who holds an MPhil from Trinity College Dublin and a diploma from ASIST in suicide prevention. She also states that she has eight years’ experience as a trainer in the Threshold Training Network, a training centre for people affected by mental health issues.

2.2. She applied for a position of life planning coordinator with an organisation for suicide prevention, which is run and funded by the respondent. She was shortlisted for interview on 30 March 2015. She successfully completed a number of steps in the interview process and was invited to an interactive meeting with users of the service, which was taking place on 8 April 2015. The complainant felt that this meeting went very well, and she states that she received extremely positive feedback from the manager of the programme. The manager also asked her whether she could contact the complainant’s references.

2.3. The following day, 9 April 2015, the complainant was contacted by telephone by a male consultant with the organisation, Mr A., who offered to provide her with feedback on her performance. The complainant states that in the course of the conversation, it became apparent that this man had attended the interactive session and had masqueraded as a participant. The complainant then also recalled that this man had made a very negative comment at the conclusion of the session, which two genuine participants had refuted.

2.4. According to the complainant, Mr A. stated during the phone conversation: “How you dress is important… I prefer woman to dress less formally… I don’t know if you could get down and dirty with the men.” This last part, about “getting down and dirty with the men”, Mr A. repeated.

2.5. Another telephone conversation between the complainant and Mr A. took place on 21 April, when Mr A. advised her that she would need to attend for a further interactive session. During that conversation, Mr A. repeated his remarks about “getting down and dirty with the men”. He also made clear to the complainant that he was the main influencer as to who would get the job. The complainant formed an impression that Mr A sought, in a very negative and hostile manner, to dissuade her from her candidacy.

2.6. In the second interactive session on 22 April 2015, Mr A. maintained a very hostile attitude towards the complainant. On 23 April 2015, the complainant was advised by telephone that she was unsuccessful in her application, and that the position had been given to a male candidate.

2.7. The complainant also states that she wrote a letter of complaint to the respondent CEO on 22 June 2015, and that she received a reply on 28 June 2015. In that letter, the respondent’s CEO confirmed that a review of her complaints had taken place, which concluded that her version of events was correct.

3. Summary of the Respondent’s Written Submission

3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the respondent is a social enterprise, working with communities in South Dublin and especially people who experience poverty and exclusion. It states that the complainant was in fact employed with it as a tutor under the Equality Women’s Measure programme. It also states that 85% of the core staff are female, as are five out of eight senior managers. The organisation’s board is 50/50 split between men and women.

3.2. The respondent further states that the suicide prevention programme is for men affected by unemployment and/or the recession, who are finding it difficult to cope. The aim of the programme is to motivate participants to make positive changes to their lives and to strengthen their resilience to their current situation. The suicide prevention programme is managed by the respondent and funded by the National Office for Suicide Prevention.

3.3. With regard to the details of the complainant’s complaint, the respondent submits that 3 men and 9 women applied for the post, of which one man and four women, including the complainant, were shortlisted for interview. Following the interview, the remaining candidates were the complainant and the male candidate. The next round was a task-oriented interview in which each applicant was required to facilitate a group of actual project participants for 30 minutes on setting life goals and incorporating the principles of the programme.

3.4. The respondent accepts that Mr A., who it says was the founder of the suicide prevention programme, was included in the interview panel. The respondent states that Mr A. is not its employee, but a self-employed project manager of the programme nationwide who had been hired directly by the National Office for Suicide Prevention.

3.5. In this round, the complainant scored 149 marks and the other applicant scored 148. According to the respondent, some group participants raised the issue that they had felt better rapport with the male candidate. Also, both candidates had run the group sessions as discussion/support groups, which was not in line with what the programme was looking for. Therefore Mr A. contacted both interviewees and asked them to come back for another facilitation.

3.6. According to the respondent, Mr A. felt that both applicants could benefit from some mentoring from him. The respondent’s manager on the programme, Ms B., was about to go on annual leave, and so Mr A. stated that he would mentor both candidates and give them some feedback on their workshop in advance of going into round three. Mr A. accepts that he raised the issue of dress with the complainant and explained that he would normally wear jeans, t-shirts and a hoodie because he had to “get down and dirty with the men” when he was facilitating. According to the respondent, he also said that the men would relate more easily to a casually dressed facilitator.

3.7. After the final round of interactive facilitation, the group said that they had felt a “disconnect” with the complainant and preferred the male candidate for his “laid back approach” and “good interactive style”. The male candidate was subsequently appointed.

3.8. The respondent accepts that it went outside its own procedures by having a third round of interviews, but strongly denies any gender discrimination. It states that ultimately, the decision to hire the male candidate was based on the physical facilitation presentation of both candidates. The respondent states that the “resounding” group response was that the course participants favoured the male candidate over the complainant. It states that there was no gender bias in that conclusion.

4. Conclusions of the Equality Officer

4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts.

4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.

4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.

4.4. There was little dispute about the facts between the parties. Mr A. was not brought by the respondent to give evidence; neither was the successful candidate, Mr B. The respondent did not seek to challenge the complainant’s evidence in any substantial way, nor did it seek to dispute that Mr A. acted as its agent within the meaning of S. 15(2) of the Employment Equality Acts when it came the “mentoring” of the two remaining candidates – and this was in response to a direct question from myself – and that it is therefore vicariously liable for his actions. It was also accepted by both parties that although the appointee to the position was responsible for his/her own tax and PRSI, the fact that the work had to be performed personally by the appointee – which both parties confirmed – meant that the contract between the parties which defined the position for which the complainant competed unsuccessfully was a contract of employment within the meaning of S. 2(b)(i) of the Acts and that the Commission therefore has jurisdiction to investigate the matter. This puts me in a position to give a fairly coherent narrative of how events unfolded.

4.5. Ms B., the respondent’s manager, stated that Mr A. had developed the suicide prevention programme while in the employment of the respondent’s predecessor organisation. In that capacity, he had hired her as assistant manager and mentored her in the programme’s approach and delivery, an experience she remembered very positively. Mr A. then left that employment and was subsequently employed by the National Office of Suicide Prevention and continued on the project as a consultant, and, as Ms B. put it repeatedly in the course of her evidence, “the voice of our funders”. I find it important to note this personal power differential between Mr A. and Ms B., irrespective of the positions they held at the time of the events on which this complaint is based. While Ms B. did not say so in so many words, I formed an overall impression that she looked up to Mr A. to some extent and would not easily question his judgment. This is important to put her subsequent actions in context.

4.6. I would also like to state that based on the entirety of Ms B.s evidence, who I experienced as an honest and forthright witness, that I am of the opinion that she acted in good faith at all times and that nothing in her personal experience of Mr A. could have led her to foresee his subsequent rogue actions. In other words, delegating these tasks to Mr A. may have been a serious error of judgement on her part, but I am satisfied it was not part of any intentional scheming on the part of Ms B to deprive Ms A of access to employment.

4.7. On the contrary: As Ms B. stated in her evidence, which I accept, a situation arose after the second round of interviews where the complainant was ahead of her male competitor by one point, but the project participants, who had a vote in the process (the other two votes were Ms B.’s and Mr A.’s), felt they related more easily to the male competitor, Mr B. It was then Ms B. who pressed for another round of facilitation, this time for an hour instead of 30 minutes, in the hope of giving the complainant another chance with the group. Ms B. said she did so because she was very impressed with the complainant and would have preferred her to succeed. Ms B. hoped that a second round of facilitation would win the project participants over to Ms A.

4.8. Ms B. was then due to go on a short vacation and took up Mr A.’s offer to mentor both candidates before the second facilitation with some relief. According to Ms B., he reassured her that all would be ok. Her understanding of his brief was as follows:

· That he would introduce himself to the candidates

· To explain what happened in terms of the candidates being very close together, separated only by a single point on the marking scheme

· To talk about the next session

· To set up a meeting with each for a mentoring session.

4.9. This, however, is not at all how things worked out for the complainant. She stated how she received a telephone call in her home the morning after the second interview, from a male stranger whose name she did not catch, and who proceeded to talk to her about her facilitation. Up until then, the complainant had felt very confident about her work the day before. She had known nothing about the 15 men she was facilitating when she started the exercise, but she stated in her evidence that she had extensive experience in working with men from socially deprived areas, both in West Dublin and in the Inner City, including ex-prisoners and men struggling with drug addiction and mental health issues. Only toward the end did a man seated on her left say: “Well, this evening was a complete waste of time for me. I don’t make plans”, to which she replied: “I have never met anybody who didn’t make plans; I am sorry this evening was a waste of time for you”. Another participant then said “I didn’t come here to listen to you, I came to listen to her”, which had elicited spontaneous applause from the group. The man who remarked about the waste of time had been Mr A. Ms B. confirmed in her evidence that Mr A was “planted” in the facilitations of both candidates to throw them a “curve ball”, as this would reflect the unforeseen situations which can often arise in the project, and because the interview board wanted to test the candidates’ reactions to these.

4.10. However, it took the complainant some time and some sleuthing in the social enterprise community to put all these pieces together and identify Mr A. as the intervener. During the phone call in the morning after the facilitation, the then unknown stranger proceeded to tell her “The men liked you last night, they thought you were warm”, and then, twice, “I prefer women to dress less formally; I wonder can you get down and dirty with the men”. He also asked her to meet him in a café in South Dublin, to which the complainant initially agreed. The complainant stated that this phone conversation left her fearful and very confused, and that the entire call felt very sinister to her. She also felt that the remarks about “getting down and dirty with the men” were extremely inappropriate.

4.11. She subsequently decided not to meet the man, who she had identified as Mr A by then, in person and phoned him to cancel the meeting. Ms B. had told her, in response to her enquiry, he was a consultant on the project. During this phone call, Mr A. told her that he would have a major role in deciding the successful candidate. According to the complainant he said “I am the one making the decisions here and be assured I will.” [Emphasis as per the rendering in the complainant’s oral evidence]. He then texted her and offered her time on the phone. On the occasion of that phone call, Mr A. again spoke to the complainant about her dress, and repeated again the “down and dirty” remark. His tone, according to the complainant, was testy and strong throughout. The second facilitation was scheduled for the following day.

4.12. According to the complainant, this facilitation was “the most humiliating experience of her professional life”. When she arrived, Mr A. was lying on a sofa, offered her no greetings and displayed a very dismissive attitude towards her. He also made negative interjections in response to her facilitation, for example asking “Am I the only person in the room who doesn’t understand what she is saying?” The complainant stated that she felt the exercise was a “charade”. Afterwards, the complainant received a phone call from Ms B., who offered her apologies saying to the complainant: “I am sorry we made such a mess of the process”, and who confirmed to her that while she had been ahead after the first facilitation, she had not been successful in getting the job. The complainant’s subsequent complaint to the respondent CEO, Mr C., was largely upheld, except that Mr C. said in his response that he was satisfied both candidates were treated the same and that the process had therefore been fair.

4.13. Mr C. was present at the hearing to give evidence. He elaborated on his finding by saying that he spoke to Mr A and also to the successful candidate, Mr B., who told him that he, too, was asked “to get down and dirty with the men”. Apart from that this constitutes hearsay evidence and is therefore of very low probative value, I find that even if I take this piece of evidence at its height, it does not prove any particular gender fairness in Mr A.’s intervention. A phrase like “get down and dirty with the men” would be heard in a much more harmless way by a man than by a woman, for whom it would have a sinister sexual undertone which a man would not necessarily associate with it. Furthermore, I fully accept Ms A.’s evidence regarding Mr A.’s tone and general demeanour with her. There was no evidence that he used the same tone with Mr B., the successful candidate. In this context, it is worth recalling the seminal finding of the European Court of Justice, as it then was, in Schumacker v. Finanzamt Köln-Altstadt (C-279/93), that “it is also settled law that discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations”. I am of the opinion that this latter scenario has arisen here.

4.14. Overall, I am satisfied from the totality of the evidence before me that under the guise of “mentoring” both candidates, Mr A. set out to undermine the complainant’s professional confidence to such an extent that she would not succeed at the second facilitation, and that he very much did so in a gender-based way and also for gender-based reasons, that is, preferring her male competitor. Given that the respondent accepts that it delegated the mentoring task to Mr A. – even though the relevant people in the respondent organisation may not have anticipated his actions, and in particular Ms B. may have sadly misplaced her trust in him – it remains vicariously liable for his treatment of the complainant. The complainant is therefore entitled to succeed.

5. Decision

5.1. This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.

5.2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Acts 1998-2015, that the respondent, being vicariously liable for the actions of its agent pursuant to S. 15(2) of the Acts, did discriminate against the complainant, on the ground of gender, in access to employment contrary to S. 8(1) of the Acts.

5.3. In accordance with Section 82 of the Acts, I hereby order that the respondent pay the complainant €13,000 in compensation for the effects of discrimination. The award is redress for the infringement of Ms A’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

5.4. This is the maximal sum I am able to award pursuant to S. 82 of the Acts in cases concerning access to employment. I am doing so because I view the infringement of the complainant’s rights which happened in this case as being extremely serious. Therefore, in accordance with the principles enunciated by the CJEU in Von Colson v. Land Nordrhein-Westfalen (C-14/83), the award needs to be “proportionate, dissuasive and effective” and I am satisfied that anything less than the maximum would not fulfil these criteria.

______________________

Stephen Bonnlander

Equality Officer

20 April 2016