Complainant

Respondent

Anonymised Parties

A Quality Controller

A Food Company

Representatives

Lars Asmussen B.L. instructed by Sean Ormonde , Solicitors

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00008973-001

05/01/2017

The complainant had been engaged by the respondent on a fixed term contract in a Quality Control role on March 7^th 2016. The contract was due to terminate on September 9^th 2016.

In the course of the contract, in July 2016, an opportunity arose to apply for a positon that carried a contract of indefinite duration (CID). She applied for the position but was unsuccessful.

Her complaint relates to the conduct of that competition and the termination of her fixed term contract.

The complainant applied for the ‘permanent’ position (i.e. on a contract of indefinite duration) and was interviewed fro the first time on July 11^th. She was scored at 38/50 and proceeded to the next round of interviews which would take place on July 22nd.

In the meantime, she notified the company that she was pregnant.

She felt the second interview went well but there was a dramatic fall off in her scores giving her only 50/100, later revised to 52/100; a fall from 76% at the first interview.

The complainant feels that the marking is suspicious. In the first place both interviewers scored her exactly the same, and then both adjusted their score in the same way. (In fact the scores were adjusted upwards to 52%).

She also says that she was given to understand (in March) that if her performance in the contract role was satisfactory a move to a permanent contract (CID) would be something of a formality. Her monthly performance was good.

She was also advised that her contract would terminate on the due date.

She submits that both events were influenced by the respondent’s knowledge of her pregnancy and represent discrimination on the gender and family status grounds. (A number of other grounds were withdrawn at the hearing).

On the change in the complainant’s interview scores the respondent says that more senior managers conducted the second interviews and that they were more rigorous in their questioning and assessment of the candidates; both the complainant and an external candidate.

In the event no appointment was made from this competition in part because neither candidate demonstrated the qualities needed and in part because the respondent was effecting savings in its overhead and decided not to fill the position.

The respondent says it was looking for a candidate with a specific capacity for leadership and concluded that neither candidate met its requirements. (An appointment was made by way of an internal transfer).

The respondent accepts that the complainant’s performance was good in her contract role but this does not provide a basis for appointment in the role for which she applied, which was competency based.

The company’s Technical Manager who conducted the second round interviews (with a colleague) gave evidence to the hearing.

She said that being at a higher level in the management structure they were much more critical in respect of performance expectations. She said they asked more probing, and different questions than those asked by the interviewers at the first interview.

She said she did not recall whether she knew at the time that the complainant was pregnant, but said that even if she had known it would not have had any bearing on her consideration of the candidate’s suitability.

The company was only formally advised of the pregnancy on August 9^th, some time after the second interview which had been held on July 22md.

In respect of the termination of the contract the respondent says it did no more than it was entitled to do under the contract terms.

Not only was the contract for a specific term but it was also for a specific, short term purpose and its non-renewal is unexceptionable especially as the purpose for which the contract was undertaken was also concluded..

There are two distinct components in this case.

The first arises from the complainant’s application for a position which carried with it a contract of Indefinite Duration (CID) and the second, the termination of her fixed term contract.

Her case is that the company acted as it did because it was aware of her pregnancy and its failure to appoint her, in respect of the first aspect of the case, or extend her contract in respect of the second, were acts of discrimination on the grounds of her pregnancy and family status.

In respect of the first of these the complaint is derived from the dramatic fall in her performance between the two interviews when her scores fell from 76% to 52%. Apart from this notable decline in her performance the complainant has also pointed the finger of suspicion at the second interview team which she alleges collaborated in reaching, and then changing their conclusions.

The sequence of events is indeed suspicious. I conclude it does raise a prima facie case which the respondent is required to rebut in respect of the first component of the complaint.

The explanation given both in the respondent’s submission and in the direct evidence of a member of the interview board was that the second interview was more rigorous and probed the candidates in greater depth. The witness was unclear about whether she was aware of the complainant’s pregnancy but said that it would not have influenced her. She was also uncertain about whether there had been collaboration with her interview colleague in reaching their conclusions.

On this latter point I do not believe such collaboration to be exceptionable. The idea that an interview team would jointly review the candidates’ performance and attempt to reach a consensus seems a perfectly sensible practise, and I draw no adverse inference from that.

The company is a large one with a multi-national spread. The plant in which the incident took place employs a thousand workers; about one third of whom are female. The hypothesis underlying the complainant’s case, that an interview board deliberately set out to mark down her performance on account of her pregnancy faces a number of obstacles.

The witness (who was on the second interview team), while hazy on some matters was credible. She is a very senior manager in the company and said that the complainant’s pregnancy would have been irrelevant to her consideration of the candidacy.

She could not recall whether she knew of the pregnancy and there was no evidence of her having been told of it.

I find it difficult to accept, in the absence of some harder evidence than was available at the hearing (which was largely supposition) that the witness and her interview colleague would have engaged in such a naked act of discrimination. And while, as noted above, it can be represented in a suspicious light, I conclude that it is no more than speculation as to a possible reason for what happened and falls well short of evidence.

Because A, B and C happen in sequence it is a matter for further proof as to there was any causal relationship between them.

It is more likely that the explanation advanced that there was greater rigour in the conduct of the interview is the correct one. I take some account also of the fact that no appointment of either of the two candidates was made because a decision was made not to fill the position.

Regarding the second strand in the complaint related to the non-renewal of the contract I can find no basis for the complaint. A fixed term contract is exactly that and the complainant must have understood that when she entered into it.

Even if the complainant had not been pregnant the contract would have come to an end. Evidence was given that the complainant expressed her disappointment that the contract was not being renewed at a meeting on August 25^th and that she sought a number of other options which would have continued her engagement with the company.

However, no basis was made out for requiring the respondent to act on any of these suggestions, and the respondent pointed out that there were no vacancies in relation to two of her requests. There was no obligation on the respondent to employ the complainant although she can hardly be faulted for trying her best to persuade it to do so.

There was evidence that the complainant had been given an indication on commencement of the contract period in April that, all going well, she would get a CID in due course. This falls short of any commitment to do so, and did not commit the respondent to go beyond the terms of the contract it had actually entered into with her, or to step outside its normal procedures for the filling of vacancies.

In addition, the respondent stated that it was also for a limited purpose; a project for a named client which had come to a natural end. No evidence was offered as to how the complainant’s pregnancy might have had a bearing on this and I do not accept that it did.

Accordingly, I find that the respondent’s explanation is credible and meets the burden of proof created by the prima facie case in relation to the interview process. For that reason that complaint fails.

The second complaint relating to the non renewal of the contract is without merit and also fails.

For the reasons set out above I do not uphold complaint CA-00008973-001 and it is dismissed.

Fixed term contract, pregnancy, interview board