EDA1619

This is an appeal by Ms Mary Linehan (“the Complainant”) against a decision of an Equality Officer/Adjudication Officer (DEC-E2016-007) dated 22 January 2016. The notice of appeal was received by the Court by email of 3 March 2016.

Dispute

The Complainant alleges that the she was discriminated against on grounds of gender by her employer, the National Advocacy Service (“the Respondent”), in a promotional competition for a temporary acting position in May 2014. The position in question was Acting Regional Manager Sothern Region and was for a fixed term of 3 months. There were 2 internal candidates for the position: the Complainant and a male colleague. The male colleague was successful in the competition and took up the acting post. The substantive post was subsequently filled in a permanent capacity in September 2014 through open competition.

The Complainant’s Submission

The Complainant submits that the selection and interview process was irrational, unfair and discriminatory in a number of respects.

Firstly, she points to the job description which was circulated on 22 May 2014 which required candidates to have a minimum of two years’ management experience. She submits she had over 14 years’ relevant management experience that spans the public and private sectors; the male candidate, in her view, had only 5 months’ relevant management experience and should not, therefore, have been deemed eligible to compete.

Secondly, the Complainant refers to the location at which the post was to be performed as per the job description “The Regional Manager will work out of the Waterford Office.” As it transpired, the successful male candidate performed the role from the Respondent’s Cork office, travelling to Waterford one day per week. She submits that as the male candidate could not meet the requirement of doing the job from Waterford, but she could, “she should have been offered the post when it was known that the male candidate no longer met all required criteria.”

Thirdly, the Complainant submits that she her relevant qualifications far exceed those of the successful male candidate. She states as follows in her written submission to the Court: “When one considers the job description “required competencies” and “desirable competencies”, “high standard of written English and report writing”, “ability to give presentations” and “advocacy qualifications”, it is not conceivable that the male candidate would excel as against the appellant who is a qualified barrister.” In support of her contention in this regard, the Complainant refers to her knowledge of the disability sector, her management skills including strategic planning, analysis and evaluation, he supervision skills and her communication skills.

Fourthly, the Complainant details what she alleges were a number of inconsistencies in the questions asked of the respective candidates by the interview panel and the marking of the candidates’ respective answers. She submits that the questions asked of her were framed from a theoretical perspective and that as a consequence she was hindered in elaborating on her actual experience while answering the questions. She queries why the male candidate was given a higher overall score for communication skills when she scored more highly in a number of other competencies.

Fifthly, the Complainant refers to the fact that the three members of the interview panel failed to record and/or retain interview notes. She was not provided at any stage with a satisfactory explanation as to how the marks awarded were arrived at and she takes issue with the fact the members of the interview met only one hour prior to the start of the interviews to agree the selection marking system.

Having regard to the combined effect of all of the foregoing, the Complainant submits that “the only reasonable inference that can be drawn from the facts that pertain here is that the process was adjusted and modified so as to favour the only other (male) candidate.”

The Respondent’s Submission

There were only two applicants in total for the acting up post, the subject of this complaint. The Respondent submits that there was nothing irrational or unreasonable in its decision to call the male applicant for interview having regard to his prior relevant management experience and the fact that he was, at the time, employed by the Respondent as a Senior Advocate and the Complainant was in the more junior role of Advocate. The male candidate was deemed to have more recent and relevant experience than the Complainant in the area of staff support. The Complainant, in the Respondent’s view, has made a number of assertions about her broad management experience gained prior to joining the Respondent (or its predecessor) but failed to provide evidence of the experience and skills she says she acquired as a consequence of that experience.

The interview process was a semi-structured competency-based process. The stated qualifications in the job advertisement were minimum requirements for eligibility to be called for interview but did not form part of the competency assessment process. This was confirmed by two of the panel members who gave detailed evidence to the Court on behalf of the Respondent in relation to the four key competencies against which the candidates were assessed (Sector Knowledge; Management Skills; Staff Supervision; Communications); the weightings applied to each competency; the rational for those weightings; the division of the competencies between the individual panel members; the respective scores given to the candidates and the rationale for the panel members’ decisions in this regard.

The Complainant was placed second when the marks were totalled at the end of the interview process and there was unanimous agreement between the panel members that the successful candidate was the most suitable for appointment to the post. Both candidates were deemed qualified for the position. There were only 4 marks between the candidates’ scores.

The Respondent accepts that the job description did specify that the position would be based in Waterford but went on to state that the role would require extensive travel through the Southern Region and that access to a car was a requirement for the job. The Southern Region covers the counties of Cork, Kerry, Tipperary, Waterford, Carlow, Kilkenny and Wexford. The Respondent submits that because the post was for a short term and was temporary in nature (3 months’ duration) it would not have been reasonable for it as an employer to insist that the successful candidate should relocate his or her home, particularly when the job required extensive travel through the Southern Region. The Respondent also submits that the accommodation of a successful candidate after the conclusion of the selection process does not provide prima facie evidence of discrimination having occurred in the course of the selection process.

Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof which a Complainant under the Act must establish:

• “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.”

• “The first requirement is 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 is no infringement of the principle of equal treatment.”

• “The type or range of facts which may be relied upon by a complainant may 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 of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a 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 reasonably be drawn from those facts.”

Conclusion

The Complainant, through her written submission and direct evidence to the Court, sought to place considerable weight on what she regards as irrational and unfair elements of a selection and interview process arising from which she was selected in second place behind another candidate who happens to be male. It appears to the Court, having considered in detail the case advanced by the Complainant, that that case is predicated largely on a lack of understanding of the nature of semi-structured competency based interviewing. The Court was particularly impressed by the very authoritative evidence in this regard given by the chairperson of the interview panel, Ms Brenda Dooley and the very cogent manner in which she explained the rationale for the scoring of the two candidates concerned vis-�-vis the stated competencies.

The Court finds no case has been made out by the Complainant from which an inference on the discrimination on the gender ground can be drawn. On that basis, the appeal fails and the decision of the Equality Officer/Adjudication Officer stands.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
JK______________________
11th July, 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.