DEC-E2016-154

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-154

PARTIES

Patrick Jordan

Complainant

v

Irish Prison Service

(Represented by Aoife Carroll, BL instructed by

the Chief State Solicitor’s Office)

Respondent

File references: EE/2013/266

Date of issue: 25 November 2016

1. Introduction:

1.1 On the 6th June 2013 and the 15th July 2013, the complainant referred complaints to the Equality Tribunal regarding discriminatory treatment on grounds of disability and victimisation.

1.2 On the 13th October 2015, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an 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.

1.3 On the 19th October 2015, the case proceeded to hearing. The complainant was in attendance. The respondent was represented by Aoife Carroll, BL, instructed by Lorraine Williams of the Chief State Solicitor’s Office. Four witnesses attended for the respondent.

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

2. Summary of the complainant’s submissions:

2.1 The complainant asserts that he has been subject to discriminatory treatment on grounds of disability and victimised for making complaints. The claim of discriminatory treatment relates his application for a post at the Detail Office and his application for the role of Staff Support Officer (SSO). The claim of victimisation refers to correspondence received by the complainant from the respondent regarding his initial complaint. On the 21st September 2015, the complainant wrote to say that he was withdrawing other aspects raised in his complaints.

2.2 In respect of the Detail Office post, the complainant outlined that this role was important in the allocation of staff resources in the prison. It is a full-time, allowance-carrying position. It attracts higher pay and involves greater duties than an officer. The complainant said that he was disadvantaged in not getting onto the panel for the post and also because of the later delay in moving to this role. The complainant said that he had been appointed to the District Office in A August 2012. He outlined that he had performed well in the role but had to go through hassle to recover back pay due to him. He referred to two colleagues who were paid their back pay quickly and said that he had been singled out by the respondent in the delay he encountered. The union had also raised this issue on his behalf, but were given different reasons for the delay. This issue had been outstanding for a considerable time. While he had since obtained the back basic pay due, he was still owed back pay for overtime and allowances.

2.3 In relation to the Staff Support Officer post, the complainant outlined that this role formed part of the respondent’s staff welfare programme, whose function was to assist officers in meeting the demands of the job. There was a duty of fidelity attached to it. It did not involve fixed hours, nor did it attract a specific payment. An SSO would be allocated normal shift hours, but carried out the support duties with officers in and out of those hours. It did, however, lead to a particular career path and opened up a promotional opportunity to the role of Chief Welfare Officer. There were three CWO’s for the entire prison service. The position of SSO was also an elevated position amongst colleagues. Commenting on the marking sheet from his interview for the SSO post, the complainant disputed the reference to him going off on “a tangent” during the discussion on workplace stress. He said that he had no other issue with the interview notes. He believed that the role of SSO had an important task in addressing workplace stress and depression. The respondent did not provide adequate support for staff encountering these problems. After the interview had dealt with the stress question, the discussion moved on to pro forma questions. He stated that he believed that one panel member may have known of his difficulties with stress but that he had been clear about his own history in addressing the issue. He had wished to challenge the interview process and he had seen reference to the possibility of obtaining a formal review. The Public Appointments Service indicated that it would not carry out a formal review of the SSO recruitment process because the post was a voluntary one. No formal review had therefore been carried out. In relation to the claim of victimisation, the complainant said that he was advancing the claim of the delay in paying the back money due to him.

2.3 In cross-examination, it was put to the complainant that there had been a full-task review underway into the prison, including the role of the District Office. He replied that the prison was still receiving committals and that he was aware of the review. It was put to the complainant that it was procedure not to pay allowances during the course of a review; he replied that it was correct that allowances had not been paid. It was put to the complainant that as the task review was still ongoing, a decision had been made to pay the allowances; he accepted that the allowances were eventually paid. It was put to the complainant that there were two separate elements to the allowances, “basic” and “consolidated” and that it was a long process to go back over the three years in question before sign off; the complainant replied that the consolidated hours were only paid in respect of District Office hours. It was put to the complainant that there had been an administrative error that delayed paying his claim, to which he replied that the union had been raising his case for ages and different explanations and different timeframes given for the delayed payment. It was put to the complainant that the other two officers mentioned by the complainant were appointed in May 2012, while he was appointed in August 2012; he replied that the date was relevant to seniority and back pay. It was put to the complainant that the SSO position was unpaid and attracted only a small telephone allowance. Furthermore, it was a role within the respondent Employment Assistance Programme, which included a CWO and two Welfare Officers. It was put to the complainant that there was no career path from SSO and no preclusion on him applying for the roles. The complainant replied that he accepted that there was no remuneration attached to the SSO post and that he did not have any information about the allowance. He agreed that the CWO and WO posts were part of the EAP, but rejected the contention that there was no career path. He said that he was disadvantaged in applying for any such role as there was weighting given for being an SSO. It was put to the complainant that his complaints related to the merits of the process and that he was dissatisfied with the outcome; he did not accept this.It was put to the complainant that the comment relating to stress arose in the assessment of “relevant knowledge” and even if he had received the full 75 marks, he would still not have reached pass mark; he did not accept this, stating that there was no pass mark given and that a formal review would have addressed these deficiencies. It was put to the complainant that the SSO panel had now expired and of the number which started, one had failed and two were required to sit repeats. It was put to the complainant that the members of the interview panel had received appropriate training and a briefing from an official of the respondent, the complainant commented that this contrasted with the documents he had obtained through Freedom of Information. It was put to the complainant that the panel did not have information on the complainant’s background or medical history, he replied that he had never suggested that they had used any prior knowledge. It was put to the complainant that his complaint was about the merits of the panel’s decision; he rejected this and said that this was about him raising his issues with stress and his disability. It was put to the complainant that an informal review had been carried out; he agreed that this had occurred and that he had spoken with two named officials. It was put to the complainant that the respondent had complied with fair procedures in carrying out the informal review, he agreed that such a review had been carried out. It was put to the complainant that the Public Appointments Service had said that they did not have jurisdiction to carry out a review; he agreed that this is what they said but the circular refers to the availability of such a formal review and the circular does not refer to the Public Appointments Service. He acknowledged that he had referred to the Public Appointments Service in his submissions.

2.4 In closing comments, the complainant outlined that he suffered from stress and depression. During the selection process for the SSO role, he had raised his disability and this had created bias within the panel, thereby reducing the scores allocated to him. He acknowledged that the remedy of instatement may have an effect on the panel. He had been discriminated against in going forward for the SSO role. This is an important position in the prison and carries esteem with the service generally and amongst colleagues. He said that his lack of success told its own story within the prison. He outlined that he was disadvantaged and disenfranchised in not having the edge of being an SSO in future competitions for the Welfare Officer or Chief Welfare Officer posts. He had performed well in the District Office role and this was also a position of note within the prison.

3. Summary of the respondent’s submissions:

3.1 The respondent denied the claims advanced by the complainant. In initial submissions, it challenged the complainant’s ability to bring up issues relating to a previous equality complaint that had been subject to a compromise agreement. In relation to the remaining claims of discriminatory treatment and victimisation, the respondent outlined that the issue of the complainant’s disability had played no part in the interview and selection process for the Senior Staff Officer post. An equality complaint could not amount to an appeal against a decision of an employer in such a recruitment process. The respondent denied that it had victimised the complainant and denied that he had been the subject of adverse treatment. It had responded to the complaint and referred to the issues concluded following the previous complaint.

3.2 The Assistant Principal for staff, pensions and remuneration gave evidence. She outlined that task reviews were carried out at different institutions within the respondent network, but that the review of this facility was prolonged and complicated, in particular as the future of the facility was also in question. It was practice not to pay allowances for posts under review as, resulting from the review, they may be deemed to be surplus. The Detail Office was subject to a review but because a longer timeframe was needed, it was decided to pay and backdate the allowances. This allowance amounted to €1,183 and the instruction to pay issued on the 6th August 2014. Basic pay was paid first but the administration locally had to verify the number of hours worked by the three officers in order to assess the additional payment due. This element was not prioritised and the response from the facility in relation to the complainant was only forthcoming in July 2015. The two other colleagues had been paid in May 2015. The issue was raised by the complainant in July 2015 and this is when the instructions from the facility also arrived. In cross-examination, it was put to the Assistant Principal that the advertisements place for the role in January 2012 did not refer to the allowances not being payable; she replied that the allowances had been payable in January 2012 and agreed that the notices did not refer to the allowances not being paid. The Assistant Principal was asked why earlier emails and representations were not replied to; she responded that this issue was not raised with her by the union and she had not seen the earlier emails.

3.3 The Assistant Principal for workforce planning gave evidence. He outlined that he had responsibility for the general administration and oversight of competition processes in the respondent. He said that the role of SSO was assigned to an officer in addition to their duties and formed part of the respondent Employee Assistance Programme. There was no guarantee of a career path and an SSO only received a telephone rental allowance. He said that he had been involved in the recruitment of Welfare Officers and Chief Welfare Officers, and was not aware of progression from SSO to these roles. If successful, a prospective SSO would go on a training programme. In respect of the interview process, he outlined that the panel had gender balance and the Chair had extensive knowledge of the SSO role. In general, panel members for competency based interviews for promotion would receive training, but in this case, the panel already had training. He had given a briefing session to the panel members and explained the procedures. The Department’s HR department had set out the SSO requirements in different competency areas. Following the interviews, 16 candidates had met the pass mark. A review was made available in order to ensure fair procedures and it was not possible to avail of the review to change marks, unless there was an obvious error. After the informal review was carried out, the Assistant Principal referred the complainant to the Public Appointments Service. He had also liaised with the PAS when they had said that they did not have jurisdiction as the SSO role was an appointment as opposed to a promotion. They declined to carry out a formal review. He said that no issue had been raised by the complainant regarding a disability and there were also no grounds for upsetting the marks given at interview. In cross-examination, it was put to the Assistant Principal that weighting was given to SSOs in later recruitment processes; he accepted this and said that those who did not hold SSO posts may also have other strengths. It was put to the Assistant Principal that it was the respondent who suggested referring the case to the PAS; he said that an informal review was carried out and they discussed getting the PAS involved. He also replied that a formal review would not have altered the marks. In re-examination, the Assistant Principal outlined that a formal review could not have changed marks, instead the competition would have been annulled.

3.4 In closing comments, the respondent outlined that the complaints related to the merits of the complainant’s application for the post of SSO. He was unhappy with the marks awarded at interview, but these marks relate to the content of the interview and do not relate to a disability. The complainant had been satisfied with the questions asked at interview, but was unhappy with a reference to a contribution being a tangent. This comment was a reference to his performance at interview and was not discriminatory. The respondent referred to case law relating to the same respondent, for example an Equality Tribunal decision (reference DEC-E2013-156), but distinguished this case as the interview process had not been carried out by an independent panel, there had been no marking scheme and no guidelines for the interview process. These faults led to a lack of transparency, raising a prima facie case of discrimination. The respondent submitted that the process in this case was different. There had been interview notes and marks prepared by the panel members. They had also met prior to the interview. The complainant had been awarded a lower mark and there is no evidence that this mark related to a disability. The complainant had not reached the prima facie case. Moreover, the respondent had carried out an informal review and the PAS formal review was not applicable. While no formal review was carried out, any such review could not have changed the marks. It was submitted that the payment of the District Office allowance had not been pleaded by the complainant, and had only been raised in recent submissions. There had been an administrative error in paying certain monies due to the complainant and this would be rectified.

3.5 In relation to redress, the respondent outlined that the relief post and the panel have now expired. The remedy of instatement would mean undoing the panel and this is beyond the power of the Tribunal/Adjudication Officer. The complainant had not suffered financial loss and there was no bar on the complainant from seeking a Welfare Officer or Chief Welfare Officer role. He was free to apply again and his career plan was in no way hindered. It was submitted that the claims of discrimination and victimisation were not made out.

4. Findings and reasoning:

4.1 The complainant is a longstanding staff member of the respondent. As prison officers, the complainant and his colleagues carry out one of the most important public services, every day of the year. They work with the country’s most vulnerable people and in the complainant’s case, he has worked with some of Ireland’s most vulnerable young people at a named detention facility. In respect of this case, the complainant asserts that he was subject to discriminatory treatment on grounds of disability in relation to obtaining a role in the facility’s District Office and his unsuccessful application for the Staff Support Officer (SSO) position. He outlines that his disability is work related post traumatic stress, arising from incidents mentioned in his submissions. He further asserts that he was victimised by the respondent for making complaints. The complainant took the opportunity to withdraw other aspects of the complaint and I make no findings on these issues. The respondent denies the claims advanced by the complainant. It says that the complainant was not penalised in the respondent’s response to this complaint and did not suffer adverse treatment. It provides an explanation regarding the complainant’s recruitment to the District Office and the payment of monies due to him. It asserts that no prima facie case of discrimination arises from the interview and recruitment process for the SSO post. It provides an explanation as to why a formal review of the recruitment process could not be undertaken by the Public Appointments Service.

4.2 These are complaints made pursuant to the Employment Equality Acts. They must be determined according to the relevant legal tests applicable to such a case. It is not a matter of assessing the overall fairness of how the complainant has been treated, as one might do in an industrial relations dispute. The burden of proof set out in section 85A of the Employment Equality Acts has been considered on many occasions by the Labour Court. It is worth setting out in detail. In Microsemi Ireland Ltd v Stawarz and others (EDA 157), the Labour Court held as follows:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.

In the jurisprudence of this Court the test for applying this notion is that developed in Southern Health Board v Mitchell [2001] ELR 201. Here the Court adopted the following analysis of Article 2 of the Burden of Proof Directive, upon which Section 85A is now based: -

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 those 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 test thus formulated has three stages: -

1. The complainant must prove the primary facts upon which they rely in alleging discrimination,

2. The Court must evaluate those facts, if proved, and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination,

3. If the complainant fails at stage 1 or 2 he or she cannot succeed. If the complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination.

The statutory 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 involves 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.”

4.3 Having considered the oral submissions and written documentation of the parties, I make the following findings in relation to the complaints. In respect of the post in the District Office, I find that the complainant has not established a prima facie case of discrimination. He showed that his recruitment to the post was delayed and that there was a further delay in paying monies owed to him. Indeed, he was able to show that there remained outstanding monies owed to him at the time of the hearing. These are obvious discrepancies in the way the complainant has been treated by the respondent. Given the circumstances of the review underway by the respondent, these discrepancies do not amount to facts of such significance that raise a prima facie case of discrimination. While the treatment was not satisfactory, it does not meet the threshold of raising a prima facie case.

4.4 In respect of the SSO position, I find that a prima facie case of discrimination has been made out. I reach this finding for the following reasons. First, there is the reference in the materials prepared by the respondent that the recruitment process for the role would fall within the ambit of the Public Appointments Service. When the complainant later sought to avail of the PAS formal review, he was unable to do so. This is something that requires explanation, in particular in the light of the complainant’s comments made at interview regarding his own experience of stress at work and how this was recorded by the interview panel (one that the complainant went on a tangent and a second that he was assertive, but not directly linked to the competency). Having considered the evidence and submissions of the parties, I find that the respondent has rebutted the inference of discrimination. I reach this finding for the following reasons. As submitted by the respondent, this recruitment and interview process was different to the processes criticised by the Equality Tribunal in the cases referred to at the hearing. In this case, there was an interview panel constituted to carry out candidate interviews and there was a marking scheme and interview notes. I consider that the notes are thorough in their assessment of what the complainant said at interview. They awarded marks for many categories of competency. I find that the explanation provided regarding why a PAS formal review could not be deliverd and the general thoroughness of the process, means that the inference of discrimination is rebutted.

4.5 I also find that the claim of victimisation does not succeed. There were two elements of victimisation advanced at the hearing . The first related to the response of the respondent to the complaint and the second related to the delay in paying arrears owed on moving to the District Office role. In the context of the earlier, settled litigation, I do not find the letter issued by the respondent to be inappropriate and the respondent is correct in its submissions that there is no adverse treatment made out. I have addressed the issue of the delayed arrears and while this is not satisfactory, it does not establish discrimination on the disability ground or victimisation.

5. Decision:

5.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find that the complainant –

(i) was not discriminated against by the respondent on grounds of disability, in terms in terms of section 6(2) of the Acts, and contrary to section 8 of those Acts,

(ii) was not victimised by the by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2015.

_________________________________

Kevin Baneham

Adjudication Officer/Equality Officer

25 November 2016