DEC-E2016-046

EMPLOYMENT EQUALITY ACTS

DECISION NO: DEC-E2016-046

PARTIES

Ms. Theresa Dwyer

(Represented by SIPTU)

AND

Civil and Public Services Union

(Represented by Donal Spring and Co. Solicitors)

File reference: EE/2013/236 & et-150815-ee-14)

Date of issue: 10th March 2016

HEADNOTES: Employment Equality Acts Sections 6, 8, Gender Discrimination and Victimisation.

1: Background

This dispute concerns a claim by Ms Theresa Dwyer that she was

(1) Discriminated against in a promotion process on the grounds of gender by Employer CPSU contrary to the Employment Equality Acts.

(2) Victimised by Employer CPSU on foot of making a claim under the Employment Equality Acts in relation to ground one above.

In relation to the first ground above the Complainant referred a claim to the Director of the Equality Tribunal on the 1st May 2013, under the Employment Equality Acts. On the 10th November 2014 the Complainant referred a claim to the Director in relation to Victimisation - the second ground above.

On the 8th October 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated both cases to me, Michael McEntee, 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 which date my investigation commenced. As both claims are very closely associated it was decided and agreed to by the parties to associate both claims in a single investigation.

Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to an initial hearing on the 16th October 2015. Following this hearing an exchange of correspondence /information followed between the parties. A resumed hearing was held on the 1st February 2016.

1:2: Volume of Evidence

Both the Complainant and the Respondent submitted a very considerable volume of written and oral evidence and it is accordingly only possible to restate the key points of the arguments and supporting evidence – all of which has been considered carefully by myself.

2: Summary of the Complainant’s Submission

A) Gender discrimination in relation to a Promotion process

2:1 The Complainant is a Trade Union official employed by the Respondent since August 2001.

Specific issues referred to in her case were the following points that she maintained were instances where she was discriminated against on the grounds of gender.

Ø She did not receive a fair process, on the grounds of her gender, in the selection process for Deputy General Secretary of the Union.

Ø A discussion among senior Union personnel had taken place in Luxembourg in July 2012. The Complainant had overheard most of the discussions –the import of which gave the Complainant severe unease regarding the fairness and gender proofing of future internal recruitment processes in the Union.

Ø The Complainant and her Trade Union SIPTU, on her behalf, engaged in lengthy discussions with the Union which ultimately ended at the Union Executive Committee, in relation to the handling of Union procedures or “Ballot” for the selection of the Interview Board for the Assistant General Secretary position in question here. Legal advice was considered by the Union. The outcome was such that the Complainant could not have absolute confidence in the process eventually arrived at but, notwithstanding, agreed to participate in the interview process.

Ø The General Secretary was a member of the interview Board albeit in a “Non-Voting” capacity – in view of the fallout from the discussions referred to above his presence at the Board was far from desirable from the Complainant’s point of view.

Ø The Interview process was advertised as being Competency Based. The Complainant did not feel it satisfied the accepted norms for a Competency based Interview and was certainly open to question on grounds of Gender discrimination.

Ø The Scoring System used was not transparent or logical and was open to challenge by Authorities expert in interviewing and the avoidance of gender discrimination in selection procedures. Detailed probability evidence was presented in support of the illogicality argument.

B) Victimisation

Following the lodging of the Discrimination complaint in May 2013 a pattern of Victimisation emerged against the Complainant.

Specifically

Ø In October 2014 her work allocation within the Union was altered to her detriment, effectively she was assigned to what would be perceived as more “junior” portfolios.

Ø A pattern of Social Exclusion developed against her: specific incidents referred to were social events surrounding the Annual Delegate Conference of 2013, Christmas events of 2013 and a staff drinks night in July 2014.

Ø Work related interference was allowed by the General Secretary – the Complainant was challenged publically at Executive meetings by other officers despite the matter under discussion being part of her job area and recognised brief. The handling of the matters at the Executive meetings was inappropriate and completely unfair on all grounds especially gender. The behaviours outlined were very undermining of her Union Official position and professional reputation.

Ø The handling of the selection process for the second ICTU Executive Committee nomination in 2013 was embarrassing and belittling for her. The discussion of her merits /demerits was clearly open to a negative gender interpretation.

Ø The Complainant’s work as the Union Equality officer has not received due recognition from the General Secretary specifically her efforts on the Garda Equal Pay claim and her efforts on the Union Equality policy and the Union e Magazine.

Ø As part of the discriminatory process the Complainant has been deprived of adequate clerical support for long periods of time, effectively making her work load more onerous than that of colleagues.

Ø The Complainant’s achievement on election as Chairperson of the ICTU Women’s Committee in September 2014 was not publically recognised or the subject of any appropriate congratulations to her by the General Secretary.

Ø In general the General Secretary is dismissive in relation to answering phone calls from the Complaint and usually ignores /declines to answer emails from her.

3: Summary of the Respondent’s Submission.

A) Discrimination Claim

3:1:

Ø The Interview Process for the Assistant General Secretary position was fair and transparent and completely free of any discriminatory gender bias.

Ø The Composition of the Interview Board was altered to accommodate concerns raised by SIPTU on the Complainant’s behalf.

Ø The Interview Board had in addition to Union Executive nominees had three most eminent independent HR practitioners – one of whom, in addition, has considerable Trade Union Officer experience. The gender balance was also appropriate – two of the external Independents were female, as was one of the Union nominees.

Ø All members of the Interview Board had received Equality and Interviewing Skills training. The Union has a very active and public Equality profile and the members of the Board would have been well aware of this.

Ø The “Competencies” referred to in the Interview and Selection process were appropriate to the position and not in any way prejudicial against the Complaint from a work experience or any gender issues.

Ø The results of the selection process were stated – another female candidate received higher marks that the Complainant.

Ø The Union took all reasonable practical steps to ensure that the selection process was non-discriminatory especially from a gender point of view.

Ø A very considerable amount of documentation in relation to the Interview Process and feedback/notes etc. has been provided to the Complainant and her advisors.

Ø Notwithstanding this and all of the above the Complainant has failed to demonstrate facts from which it can be inferred that she has suffered discrimination in relation to her gender.

B) Victimisation Claim

Ø Reallocation of duties and briefs was a normal part of any Trade Union fulltime Officials employment. The changes were fully explained to the Complainant and all other Union full time staff. There was no diminution in the Complainant’s overall levels of responsibility.

Ø The allegation of Social exclusion was rebutted. Many of the incidents referred to by the Complainant were organised by staff privately and not under the auspices of the Union officially. There was no discernible pattern of deliberate social exclusion.

Ø Social differences may exist with other colleagues but this does not equate to victimisation.

Ø There was no pattern of work belittlement or interference – the General Secretary himself is often subject to challenge / questioning at executive meetings and believed that it is important not to stifle debate.

Ø The issues surrounding the second Union nomination to the ICTU Executive in 2013 was a matter of internal Union / ICTU politics and the wisdom or not of running a second CPSU candidate. The internal CPSU discussion was not in any way directed against the Complainant personally.

Ø The Respondent asserted that the Complainant’s work especially in the Equality Area is always recognised and publically praised by the Union and the General Secretary. Her work on the Garda Equal Pay claim being a case in point.

Ø Policy decisions regarding the allocation and distribution of Secretarial support staff were implemented generally across the Union and not directed or targeted against the Complainant individually.

Ø The election of the Complainant to the ICTU Women’s Committee was recognised and publically lauded by the General Secretary albeit the handling of the nomination did cause some political issues for the General Secretary at the ICTU Executive Committee.

Ø Overall the Respondent maintained that the Complainant had not established facts from which it could be presumed that she had been victimised for her referral of the

Discrimination complaint in April 2013.

4: FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

4:1 I have to decide, on the basis of the evidence presented to me, if the Complainant was discriminated against on the grounds of gender and if she was victimised following the making of the gender discrimination claim. In reaching my decision I have taken into account all of the extensive submissions, oral and written, made to me in the course of my investigation as well as the evidence and cross questioning presented at the hearing.

4:2 Discrimination on Gender Grounds in the current case.

I was cognisant of the well-known precedents governing the Burden of Proof in Discrimination cases and Section 85A (1) of the Employment Equality Acts. The Complainant has to satisfactorily establish, on the balance of probabilities, the primary facts they are relying on to raise a presumption of unlawful discrimination or a prima facie case of discrimination and or victimisation.

The cases of Southern Health Board and Dr Teresa Mitchell (DEE011) and ICON Clinical research and Tsourova (EDA 071) are pertinent here.

4:3 In relation to the specific area of Recruitment processes the Equality Officer was also conscious of the body of Labour Court precedents in this area. The Court has always been clear of the importance, of separating what are essentially competent professionally undertaken recruitment decisions by employers from Equality issues.

The Court in the case of Waterford Institute of Technology v Kathleen Moore-Walsh (EDA 042) stated that the Complainant had contended that her qualifications and experience were not given due weight – however it was the view of the Court that:

“On the evidence the Court is satisfied that the interview board was properly constituted and conducted its business in line with accepted good practice. Where this is found to be the case, and in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the interview board.
On the evidence adduced the Complainant has not established to the satisfaction of the Court that the marks awarded by the interview board as between her and the successful candidate were irrational or unfair. Moreover, the Court is satisfied that the interview board were entitled to take the view that the successful candidate’s qualifications were superior to the acknowledged excellent qualifications of the Complainant. Finally, it has not been established as a matter of probability that the interview process was carried out unprofessionally in the manner alleged by the Complainant or at all.
Accordingly, the Complainant has failed to establish a prima facie case of discrimination and her claim cannot succeed.”

The evidence of the Interview Board members who gave oral evidence and were examined by representatives of all the parties at the oral hearing was, in my view very credible. The evidence presented was that they had conducted themselves and the Board in as professional a manner as possible and were very sensitive to the Gender /Equality requirements of their roles.

4:4 The results of the process for the candidates was in rank order

1st. Male

2nd. Female,

3rd. Male,

4th. The Complainant,

5th. Male

6th. Male

7th. Male.

In a gender discrimination complaint by a candidate who is placed number 4 and in which a fellow female is placed at number 2 the burden of proof of gender discrimination against her as the Complainant, resulting in her being placed at no 4 position, required is very high. I noted that the No 2 candidate was ahead of four males and the Complainant was ahead of three males.

4:5 As referenced above in the Waterford case (EDA 042) the Labour Court or an Equality Officer is not charged with evaluating the merits/demerits of individual candidates, effectively almost re running the Interview process. The requirement on the Complainant is to show that the process was Discriminatory on the gender grounds.

4:6 I examined in evidence interview notes, scoring sheets, handwritten margin notes and all available written records. In the taking of evidence the representatives for the Parties were afforded ample opportunity to draw my attention to any issues arising from the interview notes that they felt were of significance.

Three members of the interview Board were called to give oral evidence and were questioned in detail on the actual interview process that gave rise to the notes etc. by representatives of both parties and by myself. The evidence presented was credible and did not give me any cause for concern in relation to the professionalism of the process.

4:7 Evidence in relation to the methodology and design of the scoring system was highlighted by the Complainant. A probability exercise was presented by the Complainant to demonstrate that the allocation of the marks was statistically and mathematically irrational. This probability exercise was interesting but I felt was open to many competing interpretations and as such of not great evidential value to the case in hand.

I had to consider all this evidence and the evidential records of the actual scores being awarded, carefully, but on reflection and having heard the witnesses felt that the scoring system was appropriate for purpose and not gender discriminatory.

I noted in this context from the evidence (quoted above) that another female candidate, at position 2, achieved a higher score ahead of another male at position 3 and indeed the three males at positions 5,6 and 7 which the Complainant herself exceeded in her scores.

4:8 The evidence was that in the present case the composition of the Interview Board had been agreed between the parties in advance. In fact a completely new to the Union interview Board structure was agreed and three Independent outside experts were included on the Board by agreement between the parties.

The oral evidence of three Board members, two Union nominees and an outside Independent was considered at the Oral hearing. Questioning by myself and the Representatives of the parties was directed to the overall conduct of the interview process by the witnesses especially the handling of any gender discrimination issue. Evidence given was convincing that they were all aware of the need to be gender neutral.

The question of the avoidance of Gender bias in interviewing, both at the design and implementation stage, was raised with all the witnesses and I felt was very adequately addressed in all responses given both to myself and respective Representatives of the parties.

The Complainant did not seriously challenge any of the evidence given. I found the witnesses to be of high standing with proven experience and professional training for their roles. I found their evidence of considerable value.

In her evidence the Independent member referred to above detailed her background and experience in the area of interviewing and especially Competency interviewing in the Public Service.

While she had not been called as an “Expert” witness I found her direct evidence and response to questions by Representatives of both parties to be of high probative value in regard to the Integrity and Professionalism of the Interview Process, in both design and execution.

4:9 The other two Independent members were not called to give direct evidence. I was of the view that, having already taken evidence from three members of the Board and allowed detailed cross questioning of them by Representatives, calling additional Board members was unlikely to add much by way of new evidence.

The evidence was that the Gender balance of the Board was appropriate with a suitable male/female balance.

4:10 I considered carefully the extensive evidence given by the General Secretary of the Union. His attendance at the Board as a non-voting member was considered as a possible source of discrimination. The Complainant maintained throughout that his attendance was inappropriate and would introduce a bias against her.

However, having reviewed the complete and detailed evidence presented in relation to the entire Interview and Selection Process and the actual Board itself, I could not find evidence that the presence or other wise of the General Secretary imperilled the non-discriminatory and professional nature of the process. There was no evidence adduced that the attendance of the General Secretary gave rise to any gender bias.

4:11 I reviewed the evidence in relation to the question of the Competencies used in the interview process. Allowing for the fact that a certain latitude arises during interviews I could not find in the evidence any elements of a gender discriminatory nature in the selection or utilisation of the chosen Competencies. Again I was of the view that the results which showed another female candidate at point 2 and ahead of four other males did not indicate a gender bias in the competencies used.

4:12 At the conclusion of the oral hearings the Complainant’s representative sought to have entered in evidence an expert report on Competency Interviewing in general and not specifically related to this claim. However heaving already heard evidence from Board members and being satisfied that they were trained in Interviewing at the Institute of Public Administration and my review of the existing evidence in relation to the Competencies used I did not allow the inclusion of this nonspecific report.

4:13 In evidence much reference was made by the Complainant to a discussion in Luxembourg in July 2012 attended by the former General Secretary, the current General Secretary, some other Executive members and members of the Union’s legal team. The former General Secretary gave his recollection in evidence to the hearing of this discussion as being of a very general nature, he recalled advising and giving the new incumbent the benefit of his long experience, in regard to internal Union issues and politics.

I found no evidence either in writing in submissions or orally at the hearing to support any suggestion that this discussion was a basis for a decision to orchestrate internal Union selection procedures in a gender discriminatory manner to the disadvantage of any candidate.

4:14 Accordingly and in summary, having reviewed all the considerable evidence, I have to find that the interview process was of a required professional standard. I was unable to discover any evidence that would lead to an inference of Discrimination on the grounds of gender in the interview process.

I therefore find no prima facie evidence of gender discrimination.

4:15 Victimisation Claim following the lodging of the Discrimination complaint

Section 74 (2) of the Employment Equality Act states victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a Complainant, an employee having represented or otherwise supported a Complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.

As set out by the Labour Court in Dept. of Defence v Tom Barratt, Labour Court Recommendation ,2010, EDA, 1017 in 2010 and 2015, EDA 1516 the definition of victimisation contained in Section 74 of the Acts contains essentially three ingredients, all of which must be present for a claim under the Acts to succeed. It requires that: -

1. The Complainant had taken action of a type referred to at s.74 (2) of the Acts (a protected act),
2. The Complainant was subjected to adverse treatment by the Respondent, and,
3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

4:16 The key issues in the current case are in relation to points 2 and 3 above.

I gave careful consideration to the oral evidence of two key witnesses, the former General Secretary of the Union and the current General Secretary. Both gave very telling and personally credible evidence of the challenges facing a new General Secretary.

In Submissions which I considered carefully, there was written evidence of staff meetings, internal memos, staff notices which all pointed to innovations /changes in long standing practices by the new incumbent across a wide range of areas particularly in internal Union organisation structures and work allocations.

Documentary evidence also in the Submissions pointed to a new managerial regime with a difference in style from the former General Secretary. I could not find evidence of any policy of victimisation of the Complainant in the oral or extensive written evidence provided and given at the hearings.

4:17 The Submissions also gave evidence that Officers had queried some of these changes and the Complainant had challenged some changes via the internal Union Grievance Procedures. The Grievance process, in the current case, went all the way to the Labour Court. I could not find any evidence of Victimisation in the carrying out of these procedures.

4:18 Elements of the written evidence also pointed to the conduct of discussions at Executive or other meetings. More interplay and cross discussion among full time officers appears to have arisen under the new General Secretary.

In evidence he stated that he did not wish to “stifle debate” at meetings.

Respondent evidence was presented that the work of the Complainant was praised and well recognised in Union publications and general communications. Copies of publications were included in evidence I considered.

There was no evidence of any efforts to diminish her work especially in the Equality area – an area where her special competence was well recognised publically, particularly in the Equality e magazine area and the Garda Equal Pay claim.

4:19 I considered evidence given that indicated that the politics surrounding the ICTU Executive committee election seemed to have hinged on the wisdom or other wise of a two candidate strategy from the Union. It did not hinge on the qualifications or otherwise of the Complainant. From evidence given /presented in writing the Complainant may have felt that the discussions at the Union Executive were a personal reflection against her but no evidence to sustain a Victimisation compliant was evident.

Evidence presented demonstrated that the success of the complaint in the ICTU Women’s Committee was publically recognised by the Union and the General Secretary.

4:20 I could not find evidence that the allocation of Secretarial resources in a manner different to the past was a matter that could give rise to evidence of Victimisation of an individual officer- in this case the Complainant

4:21 I considered the evidence in regard to the allegation of exclusion from Social Events referred to in the Submissions. Some of the Social Events were part of the many events surrounding the Annual Delegate Conference. It appeared from the evidence that some confusion may have arisen as to formalities and venues but as part of a large union’s ADC this lack of clarity may well have been inevitable and should not perceived as anything inherently negative or ill-intentioned directed against the Complainant and certainly not the grounds for a Victimisation complaint.

I found evidence of a degree of confusion in relation to the Christmas events referred to in evidence. Misunderstandings in relation to choices of City centre venues, overcrowding of initial choices and internal communications difficulties when the venue was changed on the night arose definitely arose. However I found no evidence of acts of Victimisation against the Complainant.

4:22 In evidence it was clear thatthe Complainant fully utilised all internal grievance procedures in relation to her changed work portfolio including the services of the Conciliation Service of the then LRC & Labour Court and had later engaged in a process of Independent facilitation. It has to be recognised that the Complainant was placed on Administrative leave during part of this process. This development, while very upsetting to the Complainant, was part of the Union’s internal Grievance/Disciplinary process.

I had to consider this matter very carefully. I compared accepted interpretations of acts of Victimisation as opposed to acts taken during a Disciplinary process.

I could not find evidence to support the contention that the Administrative Leave was a direct act of Victimisation against the Complainant as a consequence of a complaint being made either internally or externally under the Employment Equality Acts.

4: 21 In conclusion having reviewed all the written material, the extensive correspondence, the oral evidence and cross questioning by representatives in relation to the victimisation claim, I could not find any evidence of adverse treatment amounting to Victimisation of the Complainant, as a result of making the claim of gender Discrimination.

5: DECISION

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.

I have investigated the above complaints and make the following decisions in accordance

with Section 79 of the Acts that:

Ø The Complainant has not succeeded in establishing prima facie evidence to support a claim of Discrimination on Gender grounds in relation to the promotion Competition.

Ø The Complainant has not succeeded in establishing prima facie evidence to support a claim of Victimisation in relation to her lodging the complaint of Gender Discrimination.

__________________

Michael McEntee

Adjudication Officer/Equality Officer

10th March 2016