Complainant

Respondent

Anonymised Parties

A Government Department Employee

A Government Department

Representatives

Public Service    Executive Union

Personnel Officer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 77    of the Employment Equality Act, 1998

CA-00007104-001

20/09/2016

The complainant is an Executive Officer in a Government   Department. The complainant started working with the Civil Service in 1993.   The Complainant brings a complaint against her long standing employer – the   Respondent herein – by way of a Workplace Relations Complaint Form dated the   20^th of September 2016. The Complainant has specified that she was   discriminated against on the grounds of both her Civil Status and her Family   Status when she was subjected to a line of questioning at a job interview she   was partaking in, as part of the process of competition for a position in   which she was particularly interested.

The Complainant was represented by an Official from the   Public Service Executive Union (PSEU).

The Respondent was represented by the Department Personnel   Officer and was also accompanied by a legal advisor to the Department.

It should be noted that the person whose remarks and/or   questions are the basis of this Complaint herein was not at the hearing,   being otherwise engaged. His regret   was noted. The Department Officials opted to proceed in circumstances where   the fact of the statements having been made was neither challenged nor   denied. It is further noted that this matter had already been listed for   hearing on two previous dates and had been postponed on each occasion and   that the parties were anxious to have the matter heard.

This matter was fully heard on the 27^th of June   2017 and the Complainant and the HR Officer (also a witness herein) gave oral   evidence in addition to having the previously prepared submissions opened to   me. The Representatives for both parties were given every opportunity to   fully explain and expand upon their position.

The Complainant gave her own oral evidence which I have   taken on board in conjunction with the submissions made. The complainant   outlined her career progress which includes a fifteen year period at the   level of Executive Officer within the Civil Service. In May of 2016 a number   of positions as Private Secretary to two different Ministers of State were   notified to all staff. Both positions related to Junior Ministers in the   Respondent Government Department. The Complainant was very familiar with the   type of process outlined for the selection of a candidate. In this instance a   two stage process was indicated where it was expected that a successful   applicant would have to go through a shortlisting stage and then present for   what was described as a “competency” based interview. In the interview it was   expected that candidates would demonstrate competency under certain defined   headings e.g. Specialist knowledge of the role of Private Secretary.

The Complainant was aware of the fact that the Interview   would be conducted by the Minister of State to whom this position would   attach as well as with a Senior member of the Human Relations department. The   Complainant successfully got through the first process and along with   (ultimately) two other persons was short listed for the competency based   interview.

One of key aspects of the position (as outlined in the   Office Notice) which was opened to me was an understanding that this was to be a full time position   with no flexi-time operation and there was an expectation that a successful   candidate would be required to work unsocial hours and weekends. The Complainant   was therefore fully aware of the challenges and expectations associated with,   and demanded of the positon, and was happy to put her name forward.

There can be no doubt that the Complainant was very   hopeful of success in the interview process. There were only three people   chasing two positions. The Complainant had more than twenty year service and   the Complainant had previously served in a role of private secretary – for a   three year period to the Secretary General of the Department (being the most   high ranking civil servant responsible for running the Government Department   and implementing Government Policy). It is common case that the Complainant   came to this interview with all the appropriate skills qualifications and   attributes.

In what was described as a surprising turn of events (and   in the course of the interview) the Minister of State asked a number of questions   of the complainant which he in fact prefaced by saying something along the   lines of … “I know I shouldn’t be asking this, but….” and then asking :

1. Are you a married woman?
2. Do you have children?
3. How old are your children?

Taken off guard, the Complainant answered the questions –   she confirmed that she was a married person, she confirmed that she was the   mother of two children and she indicated their ages. The Minister observed   that the Complainant “must be very busy”.

The interview moved on. The Complainant felt even before   the interview was completed that the questions had been inherently unfair and   she felt exposed, having been persuaded to disclose the fact that she had   children of relatively tender years. This she indicated could in turn give   rise to assumptions concerning the inevitable demands of family life and   parenting as against the contrasting image of a strong, willing and able candidate   that the Complainant sought to present for the job in question.

It was noted by the Complainant that at the interview no   explanation was given by the Minister as to why he asked these questions and   it is regrettable that the HR official did not make a timely intervention and   simply put a stop to this line of questioning. In her evidence the   Complainant stated that these questions and associated remarks were subsequently   sought to be given “context” but this context was not explained at the time   of the interview either by the Minister of State in question nor by the HR   Official. The Complainant felt she had been blind- sided.

In her evidence and indeed in the comprehensive note taken   by the Complainant in the days after the interview the Complainant described   how she felt that the “interview was   slipping away from her”, and the Complainant described how in the final   phases of the interview the Complainant was distracted and her mind was   processing what had been asked of her by the Minster of State as well as also   trying to answer the interview related questions which continued to be asked   of her.

The Complainant described the Minster of State’s questions   as being highly inappropriate and she believed that that she had been put on   the back foot, as it were, in being persuaded to disclose what might be   perceived to be domestic claims on her attention which would negatively   impact the attention she could give to the job she was at that time and in   that place, competing for. The Complainant noted that she felt at a   disadvantage and was placed in a position of either having to defend the fact   that she was married with children or belittle the fact that she was married   with children.

In her letter to the HR Manager penned some two days post   interview, the Complainant indicated that it was unfair to be in the position   of having to explain how her family circumstances would not affect her   performance on the one hand, and on the other hand had to worry about the   fact that the lack of explanation would have been interpreted negatively   against her. It is noted that when writing this letter on the 17^th   of June, the outcome of the interview process was known to the Complainant.

It is the Complainant’s evidence that it is singularly   telling that she, as the candidate with the greatest family commitment, was   the candidate of the three available who was not picked for this financially   enhancing promotion.

It would be fair to say that the Complainant in her letter   of the 17^th reserved her greatest criticism for the HR Official   acting as servant and or employee of the Respondent entity who could be taken   to know or ought to have known (as a person with HR experience) that the line   of questioning was inappropriate. The Complainant lamented the lack of   intervention on the HR Officer’s part. The Complainant described the Minister   of State as “personable”. In   the letter of June 17th the complainant invites the HR Official to give some   sort of comment or explanation on how this came to pass. In particular, the   Complainant had asked “Did I miss   something in the office notice which said that women with children need not   apply because that is the message which I received””

The HR Official did address the issues raised on the 5^th   of July 2016 in an email marked “confidential staff matter” and in his email   to her, he makes the general observation that the interview for the position   of Private Secretary is unique in that there is a subjective element to it   (unusual in the Civil Service setting). This is a Minister led interview and   the Minister must avail of this short opportunity to determine whether a   candidate will be somebody with whom he could hope to have a good rapport in   circumstances where he will be relying heavily on the person eventually   selected. To some extent the HR official is inviting the Complainant to bear   this in mind especially as the Minister appears to have gone so far off   script.

In addressing the actual questions raised, the HR official   explains (in this email of July 5^th)that a certain amount of   latitude should be given to this first time Minister. The purpose of the   question was a desire on the Minister’s part to move away from the job   focused questions and try and get a better idea of the candidate at a   personal level and the questions were raised in the context of asking   candidates about outside interests such as family and hobbies. He stated that   all candidates were asked about outside “interests   and hobbies etc.”..

The HR officer recalled the Minister as having said (in   the interview) that the details so gleaned were “irrelevant” to the selection process. He further stated   that the Minister had further indicated that he was very “flexible” regarding non-work   interests sometimes requiring members of his staff to leave early on occasion   and this would not be an issue for the Minister. The Complainant in her   evidence stated that this had not been clear at the interview

In summary, the HR Officer (in the 5^th of July   email) does not apparently accept that anything untoward or unusual has   occurred at this Interview and he remained silent on the issue of whether he   should or should not have intervened.

By the time the complainant received the email of July 5^th,   the Complainant had already proceeded with making her request for information   under section 76 of the Employment Equality Act of 1998. The Complainant   believed strongly that she had been discriminated against and treated in a   manner unlawful under the Employment Equality Acts. The Complainant submitted   the standard EE2 form on the 28^th of June 2016. In particular the   Complainant alleged that she was discriminated against on the ground of her   Civil status and on the grounds of her Family status (grounds outlined in   Section 6. (2) (c) and (d)).

There was some correspondence regarding a meeting which it   was proposed might be held with the Union representative, HR, the Complainant   and the Minister but this process yielded nothing that was disclosed at the   Adjudication hearing.

In a further statement made by the Complainant in advance   of this matter getting listed before the WRC (made on or about the 27^th   of March 2016) the Complainant did acknowledge that she may well not have   been the right candidate for the position. She conceded she may well have not   made the required “connection” (the word used in the email of the 5^th   of July) with the Minister of State. Crucially for her though, was the fact   that these questions were allowed to be asked of her and she says she felt   compelled to reply to them in the moment of a highly pressurized interview.   The stakes were very high for her and her opportunity slipped away. The   Complainant says these questions:

1.   Are you a married woman?
2.   Do you have children?
3. How old are your children?

Which when read together with the observation “that   must keep you very busy”   amount to Direct Discrimination. An assumption was being made, she says, that   she would be too busy to fully commit to the position she was competing for.

The Complainant pointed out in her evidence, that the Minister   of State’s own pre-emptive statement (“I   know I shouldn’t ask you….”) amounted to an admission that the line   of questioning was discriminatory on the grounds of Civil and Family status.

In addition to the above, the Complainant gave compelling   evidence concerning the ongoing difficulties she has within the workplace and   arising out of the manner in which the interview was conducted. Not only was   she not selected for the position in question but she is now the person in   the workplace universally perceived (in her mind at least) to be overly   sensitive to her family life. The Complainant additionally described   awkwardness in meeting the HR Official and the Minister of State in the   working environment. More generally the Complainant has had reason to be   worried about a stalled career that had heretofore been on a successful   trajectory.

The Respondent opened a pre-prepared written submission   and added oral evidence to these. The HR Official who had been present at the   Complainant’s interview was the primary witness for and on behalf of the   Respondent.

It was put to me that there is no agreed process for the   interviewing of the position of Private Secretary. It is such an unusual   position that it is dealt with on a case by case basis. It was accepted, of   course that any process would have to be fair and conducted within the   acceptable norms. It was explained to me that the position is often filled   without there being any competition, and a Minister may hand pick his or her   Private Secretary as the circumstances might allow. This is unusual in the Civil Service and stems   from the natural desirability of a Minister wanting to select a person with   whom he or she can be reasonably sure he or she might have a good working   relationship. A rapport must be established. In such circumstances a formal   process might not have to be gone through at all. The position of Private Secretary,   it was pointed out is unique in that it exists for only so long as the   Minister is in situ or the Minister might otherwise indicate. It is a   financially rewarding assignment but not a permanent one, and depending on   the vicissitudes of political life the position may be of short duration.

The Respondent witness agreed that there was commonality   between the parties in relation to the evidence provided. The fact of the   questions having been asked was not denied. The witness explained that the   Complainant was only one of three candidates to make it to the interview   stage and that this fact spoke to the impressiveness of her CV, her   competency and her achievements. It was submitted that in terms of ranking   the Complainant came to the interview process ranking third behind the other   two Interviewees. This fact it was stated was not known to the Minister of   State at the time of the Interviews. The Complainant therefore as far as the   Minister was concerned, came to the interview process on an equal footing   with her comparators.

The Witness stated that the particular interview process   cannot be graded or marked in the usual (and presumably more transparent)   way. The decision to select one of the three candidates was made at the end   of the round of interviews and the decision is made by the Minister and is   quite simply “made in the round”   per the HR Officer. There is a subjective element arising out of the Minister’s   sense of which of the candidates he might best be able to work with.

The point was empathically made that the Minister of State   was simply trying to put the Complainant at her ease. The questions asked were   not intended to be intrusive. This was intended to be a “getting to know you” exercise and nothing in particular   was meant by what might ultimately be perceived by the Complainant as a   deliberate manoeuvre to have certain information disclosed by her and which   should otherwise be considered private and /or irrelevant. The evidence is that   the Minister declared the fact finding exercise to be “irrelevant” in the course of the interview. The   Complainant it was submitted should have taken some comfort from this   declaration of it’s being “irrelevant”   .

The evidence of the Witness was that these questions were asked in a particular “context”. The Minister of State, it was   submitted, was anxious that any potential member of his team would be assured   that he would be as flexible as he could be with them and in particular   having regard to any external and or non-work commitments that they might   have.

It was said in evidence that the other two candidates were   also put through a similar “getting   to know you” type process. It was further stated that the same three   questions were not asked of the other two interviewees. I was told that the   male candidate voluntarily disclosed (when asked about what he enjoyed doing   in his free time) that at the weekends he likes to spend time with his son   and the third candidate was not asked those three questions asked of the   Complainant.

The HR Witness gave evidence that he had limited notes   taken as this Interview process was not comparable to the standard Civil   Service type interview.

The Respondent HR Witness acknowledged the obligations set   down under the Employment Equality legislation and the operation of 24/2002 Diversity in the Civil Service   –v- A Policy on Equality of Opportunity was confirmed. In that   circular, Civil Servants are assured that their rights under the Employment   Equality Acts are guaranteed and that no one will receive less favourable   treatment than someone else by reason of their gender, marital or family   status etc. The circular goes on to state “…the   Civil Service is committed to ensuring equality of opportunity in the key   resource areas. These are:

-Recruitment

-Promotion…(etc)”

The Respondent further acknowledges and accepts the   obligation to ensure that members of interview boards and those persons who   might otherwise be involved in the assessment of staff for promotion or   recruitment ought to have the many and varied obligations under the Employment   Equality legislation specifically brought to their attention.

It was submitted by the HR Officer that he had fulfilled   his obligation in advance of the Interview process when he did give some   guideline to the Minister of State regarding the proper conduct of the   Interviews.

I have carefully considered the evidence adduced in the   course of this hearing. I have also considered the submissions provided   together with the documents opened to me.

The Complainant has brought a Complaint against her   Employer the Respondent entity and in particular pursuant to:

Section 6 of the Employment Equality Act 1998 where

Sub Section   (1)…discrimination shall be taken to have occur where –

(a)     A   person is treated less favourably than another person is, has been or would   be treated in a comparable situation on any of the grounds specified in   subsection (2)(the “discriminatory grounds”)

Sub Section (2) As   between any 2 persons the discriminatory grounds..are…

(b)     That   they are of a different civil status

(c)      one   has family status and the other does not

Section 8 of the Employment Equality   Act 1998 where

Sub section (1) In   relation to..(d) promotion or re-grading… an employer shall not discriminate   an employee…

It is noted that the Complainant did not submit a   complaint of discrimination on the ground of Gender which might also have   been applicable in the circumstances.

It is worth noting that the parties are largely in   agreement on what happened in the interview. It is accepted that certain   questions were asked and whilst the Respondent has sought to give these   questions some context or background explanation the Complainant has simply   submitted that these question of themselves amounted to a Discrimination

There was no clear indication that this “context” I was   invited to consider as being at the heart of the Minister’s reasoning was in   fact made known to the complainant in the course of the interview. The   Respondent witness says it was, and has placed emphasis on the Minister’s use   of the word “irrelevant”.

Having drilled down into the minutiae of her personal   obligations and commitments the Minister of State I find did not make it   clear to the Complainant that he wanted her to understand that she would find   him to be a most flexible employer. In any event, laudable as this sentiment   might be, there is an underlying assumption that somebody in the Complainant’s   position would require more flexibility in the position than someone with   different or lesser external commitments.

So, whilst the Minister of State declared the information   to be “irrelevant” the information must also be seen in the   context of his also having declared that the candidate’s life “must keep her very busy”. (At   this point it is worth noting that there is no suggestion that the   Complainant’s husband might be equally as busy as the Complainant herself).

At the hearing, I was invited to consider testimonials   from members of the Minister of State’s Constituency Team attesting to the   fact that he is excellent to work with, and for. I do not doubt the veracity   of any such testimonials though did not deem it necessary to consider them.

I can understand the sentiment behind the Minister of   State’s somewhat avuncular approach and I do not criticise his wish to make   it known that he would be a person who could be depended upon to be flexible   with a potential Private Secretary. However, it is incomprehensible that he   was not advised that this could be done by way of making a simple declaration   to the effect that it is his practise to be as flexible as he might   reasonably be expected to be regardless of what any individual persons external   commitments might be. This could have been done without reference to the   individual’s own personal circumstances (whether that include a spouse,   partner, child, parent or some other time consuming pastime). This could have   been done without the need to drill down into the minutiae of a candidate’s   home life, as happened here. It was ill-advised of the Minister of State to   have so pointedly obtained information that had nothing to do with this candidate’s   suitability for a position, and a position for which she had determined she   was eligible to compete.

I doubt very much that this HR Officer, with his clear HR experience,   had he known in advance of what was going to be asked, would have sanctioned it.

The Minister of State alone spoke the words and the post   incident attempt to dress it up in a “Context” does not take away from the   objectively Discriminatory nature of these remarks. In fact the Minister of   State himself might be deemed to have acknowledged the inappropriateness of   this line of questioning when he prefaced it with the comment “ ..     I know I shouldn’t ask this but….” .

I do therefore have some sympathy for the HR Officer who   is in the difficult position of trying to keep a newly appointed Minister under   some sort of advisory warning. In preparing the Minister of State for this   Interview this particular line of questioning could not have been sanctioned.   The HR Officer could not have known the Minister was going to ask a series of   questions so out of the norm. The Complainant indicated that she would have   preferred an intervention then and there. This did not happen, and I agree   with the Complainant that this is regrettable. I also accept that as a   consequence, the Complainant’s interview was, in her mind, derailed.

Much was made of the subjective nature of this Interview.   It certainly seems to have accounted for the lack of detail on the written   notes made during the Interview and any deliberations and assessments made post   Interview. The decision to select a final candidate was made I was told “in   the round” and the decision had as much to do with interviewee   personality, as competency. The Complainant, to her credit has accepted the   unusual nature of this “competency based” Interview. She has, in fact, gone so far as to allow for   the proposition that she may not have been the candidate that made the   strongest “connection” with   the Minister of State.

It is understandable that the Minister of State must use   this Interview time as an opportunity to assess in however small a way, the   personality of the individual. It is in fact the only opportunity he gets and   it is very important where the position of Private Secretary works so closely   to him. The Minister is bound to want to make sure that there is scope for a   general good rapport. That said, there is a positive obligation on the   interviewer to demonstrate some restraint so as not to offend the principles   set down in the Employment Equality Acts.

It was suggested to me that the Minister had asked similar   questions of the other two candidates. However there is no evidence to   suggest that either of the other two witnesses were asked this particular   series of questions or anything similar in nature. The Complainant was the   only one of the three persons who was asked these particular questions. It   also has to be noted that the other two candidates secured the two available   positions and I cannot presume to know what their experience was.

There is a not inconsiderable amount of case law in this   area. In fact, the Minister of State’s own comments and questions are quite   reminiscent of those cases that gave rise to early decisions in this area –   so outmoded are these comments of his. None of the case law was opened to me.   In assessing same however, I note that the trend has been for findings of   Discrimination to be made even where the person in fact given the job might   have been highly suitable. Simply being asked discriminatory questions are   sufficient grounds for bringing a successful claim.

The cases of Phelan   -v- Michael Stein Travel (1999) ELR p58 and Elizabeth Barry –v- Board of Management Virgin Mary Schools DEC-E   -2001-31 are both cases that illustrate this point.

For the avoidance of doubt I make the finding that the   questions:

1. Are you a married woman?
2. Do you have children?
3. How old are your children?

Together with the observation that it “must   be very busy” are Discriminatory questions and comments for the   purposes of the Employment Equality Acts 1998 – 2004. They are objectively   Discriminatory with a universally understood implication. The Discrimination   is perpetrated on the grounds of both Civil Status and Family Status as set   out in Section 6.

I find the Complainant was put in a difficult situation in   a job interview by reason of probing questions which went to the heart of her   married and family life which historically could not be considered gender   neutral questions and indirectly associated her with the task of primary   homemaker and therefore not as available as other less encumbered candidates   might be.

I must therefore conclude that the Complainant has   established facts in relation to prohibited conduct such that she has shifted   the burden of proof to the Respondent to prove that there was no infringement.   For the reasons outlined, I find that the Respondent has not satisfied this   obligation.

I am further satisfied that the interview process was   tainted by the fact that these questions were raised and allowed to be   raised. The same or even similar questions were not asked of the other two   candidates. I do not find that the Complainant was not ultimately selected by   reason of the Questions asked and answered.

The Complainant was entitled to rely on the circular   24/2002 issued by the then Assistant Secretary that all civil servants can be   confident that their rights under the Employment Equality Acts are guaranteed   and no one will receive less favourable treatment than someone else because   of their gender or Civil status or Family status.

The Complainant was entitled to rely on the assertion that   the Civil Service is additionally committed to ensuring that equality of   opportunity in certain key areas including recruitment and promotion would be   observed.

I note that the Complainant gave relevant evidence   regarding the ongoing distress she has experienced in the workplace post   interview. In these circumstances, and where the Complainant has made her   case under the Employment Equality Acts, I award the sum of €7,500.00 compensation   for the Discriminatory Remarks and Questions.

Discriminatory questions.