EMPLOYMENT EQUALITY ACTS
DEC-E2016-007
Mary Linehan
(represented by SIPTU)
versus
National Advocacy Service
(represented by IBEC)
File Number: EE/2014/435
Date issued: 22nd January 2016
Keywords: Employment Equality Acts, Gender, Access to Promotion,
Dispute
1.1 The case concerns a complaint by Ms Mary Linehan (the complainant) that the National Advocacy Service (the respondent) discriminated against her on the grounds of gender regarding access to promotion contrary to Section 8(1)(d) of the Employment Equality Acts 1998-2011 (hereinafter referred to as ‘the Acts’).
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 14 August 2014. On 15 December 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Peter Healy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and as required by Section 79(1) of the Act a hearing commenced on 14 January 2016.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
Summary of the complainant’s case
2.1 The complainant was employed by the respondent as an Advocate and applied for the post of Acting Regional Manager in May 2014, which had been advertised by the respondent at that time. The complainant was one of two applicants for the job, the other being a male, and was interviewed for the position in May 2014. The complainant was not successful in that competition and the male candidate (Mr X) was.
2.2 It is the complainant’s position that the recruitment process and interview process were carried out unprofessionally, not in accordance with best practice and that there is substantial and significant evidence of unfairness or manifest irrationality in the result. The complainant submits that all the major elements of the screening, interviewing and scoring process were manipulated by the respondent to favour a male candidate.
2.3 The complainant submits that one of the competencies examined in the interview process (communications) was given increased importance compared with previous recruitment processes for Regional Manager Posts. It is the complainant’s submission that the marks allocated to the communication competency were manipulated in order to select the successful male candidate. The complainant submits that the subjective element of the criteria facilitated this and that the communication mark was enhanced leaving the complainant with little concrete evidence to challenge the marks of a subjective criteria of communication.
2.4 The complainant submits that, at interview, the successful candidate was never asked about possible commuting difficulties relating to the Manager position but that she was.
2.5 The complainant submits Mr X did not meet basic advertised qualification criteria for the manager position. Specifically, the complainant submits that Mr X did not have “experience (minimum two years) of managing and supervising teams” whereas she had. The complainant agrees that the successful candidate was an acting regional manager for six months, but that this alone and other roles do not meet the required criteria. The complainant submits that Mr X was significantly less experienced in managing and supervising teams.
2.6 The complainant submits that a staff supervision criterion was confined to advocacy teams in order to assist Mr X as it played to the strengths of his experience.
2.7 The complainant submits that in July 2014 the respondent provided her with an erroneous list of questions asked during the interview. The complainant submits that the actual questions asked during the interview were significantly different from those claimed by the respondent to have been asked of both candidates.
2.8 The complainant has submitted a significant volume of case law in support of her complaint. The complainant submits that in a similar case DEC 2013/054, Susan O’Kelly v WYG Engineering (Ireland) Ltd, that it was found that MS O’Kelly was more qualified and had more experience than her male colleague who was successful in the application for promotion. That Tribunal referenced another case in this regard Wallace v South Eastern Education from the Northern Ireland Court of Appeal, NI 38[1980] IRLR 193 “the proposition that where a successful candidate for appointment to a post is a man and the unsuccessful but better qualified candidate is a woman, that fact alone is sufficient to establish a prima facie case of discrimination”.
Summary of the respondent’s case
3.1 The respondent utterly refutes any allegation of discrimination on the ground of gender. They submit that the promotion process was fair and transparent and that the successful candidate was appointed as he achieved a better score at the competency based interview. The chairperson of the interview panel gave direct evidence at the hearing of this complaint that, both candidates were very good, but that Mr X achieved a better overall score as a direct result of his preformenace in the interview.
3.2 The respondent submits that the interview panel consisted of two females and one male. The respondent submits that in June 2014, five of their six senior managers were female and that an 80% female predominance corroborates that there is no bias against females in the National Advocacy Service.
3.3 The respondent submits that both candidates were scored against the same competencies and that the core questions pertaining to competencies were the same for both candidates and that Mr X achieved a better over score of 85 following scoring under all of these competencies against a score of 81 for the complainant.
3.4 The respondent rejects any assertion by the complainant that Mr X had less experience and has provided this tribunal with Mr X’s application, associated C.V. and a description of the role of senior advocate, which is a significant element of that application.
3.5 The respondent submits that both candidates had the required qualifications for the Manager role and its selection process. The requirements in the regional manager job description states “Educated to graduate level in social sciences, humanities law. Equivalent experience and training will also be considered” and the respondent submits that this was not one of the scoring competencies.
3.6 The respondent submits that in the case of EDA0712 Co Louth VEC V Don Johnson, the Labour Court found that in cannot find fault with the interview board for not taking any contemporaneous notes when they had a detailed list of the criteria used in the selection process, and an agreed breakdown of the marking system applicable to each of the criteria.
3.7 The respondent submits that it is normal practice to review selection and marking criteria and they reject any assertion by the complainant that such criteria were changed between promotions to disadvantage the complainant on the ground of gender. The respondent has provided this Tribunal with a detailed written account of the interview and the reasoning of the panel in relation to scoring for each competency. The respondent submits that the interview panel met in advance of the interviews to review the scores that would be awarded for each competency. The respondent submits that the panel decided to award higher marks for two competencies and that this favoured the complainant who achieved higher marks than Mr X in those competencies.
3.8 The respondent submits that the fact that the complainant does not agree with the decision of the interview panel does not automatically make their decision unfair and that the fact that two candidates of the opposite gender meant that whichever candidate was successful, they would have a different gender to the unsuccessful candidate.
Conclusions of the Equality Officer
4.1 I have to decide if the complainant was discriminated against in relation to promotion on the gender ground. In reaching my decision I have taken into account all of the submissions, oral and written, made to me by the complainant in the course of my investigation as well as their evidence presented at the hearing. Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “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 him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.2 The complainant in her written submission has submitted the high court decision of O’Higgins v The Labour Court and UCD [2013 No 21MCA] In the original decision the Labour Court give a useful précis of what needs to be considered when looking at whether a promotion competition is tainted with discrimination:
‘1.It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination
2.If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.
3.It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts
4.In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.
5.The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result
6.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 give rise to an inference of discrimination.
7.Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
8.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’[1]
4.3 The complainant submits that Mr X does not meet a minimum requirement set out in the job specification for the Manager role, a minimum of two years managing/supervising teams. Specifically the complainant contends that Mr X’s experience in the role of Senior Advocate should not have been taken into account by the respondent. Evidence was given at hearing (for the respondent) by a senior manager that the senior advocate role contains an appropriate element of supervising teams. In combination with a written Job description and in the context of the hierarchical structure of the National Advocacy Service I find it reasonable that any third party would assume that the role of senior Advocate meets the managing/supervising teams requirement. Having examined the C.V.s submitted by the complainant and Mr X, I find nothing manifestly irrational in the decision made by a senior manager for the Respondent, that Mr X met this minimum requirement and should be allowed through to interview. Similarly, in regards to educational requirements I find it is clear that Mr X met the advertised requirements of the role and find no evidence of unfairness in the decision not to award additional marks in the interview process for other educational achievements.
4.4 Having heard direct evidence from the complainant and the Chairperson of the interview board, I find that both parties are in agreement about the general manner in which the interview was conducted and the theoretical nature of the questions asked. The complainant submits that she was asked different questions than Mr X and that while she felt at times a lack of engagement by some members of board. No evidence of overtly objectionable behaviour or questions related to the ground of gender have been presented. Taking all of the above into consideration, I accept the account of the interview put forward by the respondent and I find that while the board had been presented with a list of questions to ask candidates, that it was reasonable for the board to vary those questions at interview to properly asses the candidates. I find nothing in the interview process of sufficient significance to raise the inference contended for.
4.5 The complainant has founded much of the reasoning for her complaint on the contention that she is inherently more qualified and experienced than Mr X, and submits that in a similar case DEC 2013/054, Susan O’Kelly v WYG Engineering (Ireland) Ltd, that it was found that Ms O’Kelly was more qualified and had more experience than her male colleague who was successful in the application for promotion. That Tribunal referenced another case in this regard Wallace v South Eastern Education from the Northern Ireland Court of Appeal, NI 38[1980] IRLR 193 “the proposition that where a successful candidate for appointment to a post is a man and the unsuccessful but better qualified candidate is a woman, that fact alone is sufficient to establish a prima facie case of discrimination”. While it is not my role to substitute my views on the merits of candidates for those of the designated decision makers, I have examined the applications and C.V.s of both candidates and I can find nothing to suggest that one candidate differed significantly from the other in terms of qualifications or experience and therefore I can find no evidence of irrationality or unfairness in the decisions reached by the respondent. I accept the respondent’s assertion that the successful candidate was selected based on the scores achieved at interview and I find no evidence that the selection process was tainted by unlawful discrimination relating to the gender ground.
4.6 It was the complainant’s evidence at the hearing that she could “think of no reason” why the respondent would discriminate on the gender ground. I can find no context given the predominance of female managers and interviewers relevant to this complainant for a presumption of gender discrimination. Regardless, I have examined all aspects of the process in order to discern any evidence of unfairness related to discrimination. Having heard all of the evidence I find arguments by the complainant that the interview panel was influenced by any issues regarding the commuting requirements, the manipulation of criteria and the inconsistency of questions at the interview to be speculation on her part and not supported by any facts. The complainant submits that that all the major elements of the screening, interviewing and scoring process were manipulated by the respondent to favour a male candidate. Having reviewed the documentation submitted by the parties and their oral evidence, I find that there are no facts from which discrimination can be inferred. There is no evidence of unfairness in the interview process or of irrationality in the panel’s decision to rank another candidate as their preferred candidate and to rank the complainant as appointable but in second place.
Decision
5.1 In accordance with section 79 of the Employment Equality Acts and section 41(5) (a) (iii) of the Workplace Relations Act 2015, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that she was subject to discriminatory treatment on the gender ground.
_______________
Peter Healy
Equality Officer/Adjudication Officer
22nd January 2016