Complainant

Respondent

Anonymised Parties

A Trade Union Official

A Trade Union

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-00009197-001

19/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00009197-002

19/01/2017

The complainant is a trade union official who commenced her employment with the respondent in 2003.

She applied for an internal promotion but she was unsuccessful.

The complainant says she was discriminated against on the ground of her gender and of her sexual orientation.

She says that she was treated less favourably than more junior and male colleagues. She says there was a gender imbalance on the interview board and the result would have been different had it been gender balanced.

She says that she would have had more knowledge than junior colleagues who were applicants.

Of the successful candidates nine were men and only one a woman.

She also says that her sexual orientation was a factor. She is an ‘openly’ gay woman. However, she describes her belief that she was discriminated against on this ground as a ‘feeling’ but did not offer any evidence.

Her complaint under the Industrial Relations Act was withdrawn at the hearing.

The respondent says that the interviews were conducted by reference to a number of objective criteria. While it notes the complainant’s own view of her skills and experience these must be demonstrated to the interview board in the course of the interview, and must also place her ahead of other candidates in a competitive selection process.

It s not sufficient for a candidate to believe she has the necessary skills, or better skills than another candidate. This is a matter for assessment by the interviewing panel.

The respondent says that the complainant has not established a prima facie case.

The membership of the interview board (five men one woman) is not, on its own, sufficient to establish discriminatory treatment. It is accepted that, normally, gender balance is better on the respondent’s interview board and the situation in relation to this interview was a result of developments over which it had no control.

However, all interview board members were given training in advance of the interviews, including on the application of equality legislation and the questions which may be asked at an interview.

Ultimately, appointments must be ratified by its executive council which has one third female representation.

In respect of the complainant’s second ground; that employees more junior to her were appointed, all of its employees were entitled to apply and were considered on merit. The fact that they may have had shorter service than the complainant was not decisive. It was a matter of assessing their potential to fill the advertised role in the future.

The interview criteria were all ‘competency’ based; an entirely legitimate basis for conducting them.

Candidates were fully briefed on how the interviews would be conducted, including that a presentation would be required.

Details were provided of the marking outcomes and showed the complainant a significant way behind the two ‘junior’ colleagues she referred to.

Also, one of the male applicants with significantly less service than the other scored higher than the other male applicant. In addition, service outside the respondent organisation was considered. One successful candidate had extensive such experience.

A candidate must demonstrate how they will ‘step up’ into the role. Whereas the complainant has long service this is only one aspect of the assessment of the candidates.

Regarding the sexual orientation ground the respondent says that the interview panel is unlikely to have been aware of the complainant’s sexual orientation. It played no part in the outcome.

The complaint was made under three grounds.

One of these, CA-00009197-002 was withdrawn at the hearing.

In respect of another, that related to the sexual orientation, the complainant could offer nothing better than a generalised ‘feeling’ that it played a part in the outcome.

In respect of the other ground, the complainant is clearly very unhappy that colleagues more junior to her were successful at her expense. She at least, felt that her entitlement to promotion was greater than theirs.

Indeed, she manifested odd attitudes to younger colleagues on the basis solely of their youth and inexperience which might be regarded as surprising in a trade union official, to put it no more strongly.

The complainant failed to mount any credible challenge to the validity of the interview board’s marking system. Despite referring to it as flawed she failed to support this assertion with evidence.

In her submission, she states, somewhat indignantly, that ‘at least two candidates who applied for [the position] were in school, while I was carrying out these duties and gaining my experience’.

Experience is not a synonym for ‘service’, or the length of time a person has served in the respondent organisation., as the complainant appeared to believe. Without commenting on the merits of any of the applicants in the current case a person could easily spend many satisfactory years in a particular position, but fail to develop any insights, new skills etc. which would qualify them for an enhanced role at a higher level in the organisation.

In addition, an interview is an assessment of the relative merits of the applicants. Falling short is not necessarily an indictment of the performance of the applicant in a current role.

The complainant drew attention to the fact that the performance of her duties had never been questioned. She says;

The interview in itself created an immediately obvious situation whereby having carried out my duties in accordance with the rules of the organisation and without ever having my professional capability or qualifications called into question, suddenly Junior colleagues are found to be more qualified than I by the majority male interview board.’

This demonstrates a serious lack of insight into the nature of a competitive interviewing process.

I note with some concern that the complainant failed to avail of the opportunity for interview feedback and was dismissive of the offer of it.

There is no legal requirement to do so, but some onus falls on any complainant, and especially an industrial relations practitioner to exhaust internal options and explore relevant issues before seeking a hearing on the complaint at the WRC. The place for a conversation about how the interview board reached its conclusions is, in the first place, in the workplace. It would have been helpful to the complainant in preparing her case.

The complainant was obviously disappointed at the outcome and this is always understandable.

She seems to have been disproportionately upset at the fact that successful candidates were younger than she was, (to judge from the emphasis placed on it in her submissions) and her grievance appears to have proceeded from this starting point to the current complaints.

However, that disappointment is insufficient on its own to ground a complaint under the Employment Equality Acts and on the current facts it may, as the respondent submits, fall below even the very low bar that is necessary to ground a prima facie case.

In any event, I find that her complaint on the gender ground has no merit and it fails.

I am satisfied that the interview board carried out its task diligently and in a fair manner and having regard to the competencies required for the position.

Her complaint on the sexual orientation ground does not meet the prima facie standard. It too fails.

For the reasons set out above complaint CA-00009197-001 fails on both the gender and sexual orientation ground and it is dismissed.

Complaint CA-00009197-002 was withdrawn at the hearing.

Selection process, discrimination. Gender, Sexual orientation