EMPLOYMENT EQUALITY ACTS
DEC-E2018-007
An Occupational Therapist
versus
An employer
(represented by Arthur Cox)
File Number: et-159315-ee-15
Date issued: 15 March 2018
Keywords: Employment Equality Acts, Gender, Access to Promotion,
Dispute
1.1 The case concerns a complaint by An Occupational Therapist (the complainant) that An Employer (the respondent) discriminated against him on the ground of race regarding access to promotion contrary to Section 8(1)(d) of the Employment Equality Acts 1998-2011 (hereinafter referred to as ‘the Acts’).
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 8th August 2015. On 27th September 2017, in accordance with her powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Peter Healy, 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 this date, my investigation commenced. Submissions were received from both parties and as required by Section 79(1) of the Act a hearing commenced on 28th November 2017.
1.3 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.
Summary of the complainant’s case
2.1 The complainant was employed by the respondent as an occupational therapist. On the 14th March 2015 he was interviewed for the position of temporary Occupational Therapy manager for a maternity cover period.
2.2 The complaint was the only candidate interviewed for the job. He was interviewed by two persons Ms A and Mr B. The complainant submits that there should have been three persons in line with respondents own policy.2.3 The respondent was unsuccessful as he failed to reach the required scores under three of the five competency areas and scored poorly in the other two. The complainant submits that he was prevented from expanding on his answers during the interview process by Ms A when she repeatedly interrupted him.
2.4 He submits that Ms A and Mr B were both motivated by racial discrimination related to his ethnic origins and had denied him the promotion.
2.5 The complainant used the respondents’ internal process to appeal the decision and was unsuccessful. The complainant also submits that manager A was motivated by racial discrimination when processing this appeal.
Summary of the respondent’s case
3.1 The respondent utterly refutes any allegation of discrimination. It submits that the complainant was simply found not suitable for the role following an appropriate selection process.
3.2 The Respondent submits that this Adjudicator should adopt the approach traditionally taken by the Labour Court in hearing appointment/promotion cases under the Employment Equality Acts and not substitute its views for the view of the decision maker but instead review the process adopted. In O’Higgins v University College Dublin[1], the Labour Court, in refusing to grant relief to the complainant, noted that the Court “will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.” This decision was upheld on appeal to the High Court by Cooke J.[2], who noted that no error of law had been made by the Labour Court, and that
“It was not the function of the Labour Court to decide whether the applicant's academic achievements and publications were at the level of excellence she maintained nor whether they were superior or inferior to those of other applicants. The judgments as to the degree to which the applicants met or exceeded the standard required by each of the designated criteria were qualitative judgments delegated exclusively to the specialised appraisal of the members of the committee.”
3.3 The recruitment process for temporary positions within the respondents organisation is subject to a particular circular, which was delivered on 15 October 2013. The Guidance Document produced pursuant to this circular states that where the temporary post to be filled is of more than three months in duration, the recruitment activity will be conducted using the guidance of the National Recruitment Service, and the step-by-step guide produced by the NRS, entitled Guidelines for Confined Recruitment - Selection and Appointments.
In particular, these Guidelines state that:
“Credit will be awarded by the interview board to candidates who demonstrate at interview that they possess the experience, competencies and skills listed in the Job Specification and as listed by the candidate in their application form.”
3.4 In early February 2015, a notice was circulated to relevant personnel within the Respondent inviting applications from eligible staff for the position of Temporary Occupational Therapy Manager. A Job Specification and Terms and Conditions were appended to the notice, outlining the competencies required in the role and emphasising the temporary nature of the position.
3.5 An interview board was appointed on 26 February 2015 and consisted of Ms A, Occupational Therapy Manager and Mr B, a relevant Manager from within the respondent organisation. It is submitted that Mr B has extensive experience of conducting national recruitment interviews for and on behalf of the Respondent as a member of the National Recruitment Panel interview board and is a previous Council Member of the Association of Occupational Therapists of Ireland. Ms A holds the post which was to be filled on a temporary basis to cover her maternity leave following the recruitment campaign. Both Ms A and Mr B had conducted interviews prior to their invitation to the panel, and had received training in conducting interviews by the Respondent.
3.6 On 26 February 2015, the interview board met to discuss the questions that would be asked in order to allow prospective candidates to best present their abilities to meet the competencies required for the position. A copy of the framework questions drafted at this meeting, together with a post-dated record of the prompts given during the interview in relation to each question, have been provided for consideration.
3.7 The Complainant attended for interview on 4 March 2015. A variety of questions were asked in relation to the necessary competencies for the post. At the end of the interview, the Complainant was asked if he had anything further to add. The questions asked reflected the framework questions composed by the interview board prior to the interview, and are illustrated in the interview notes. Following the interview, the panel determined that the Complainant had not demonstrated the necessary competencies to fill the position. In particular, the interview board was concerned that the Complainant had not demonstrated “an acceptable knowledge and experience in the areas of key management skills including leadership, quality assurance, risk management and change management.” On 5 March 2015, Ms A informed the Complainant that he had been unsuccessful at interview, enclosing a Record of Interview and Assessment.
3.8 The complaint appealed the outcome of the process through and an independent person Ms C. was appointed to investigate. On 11 May 2015, Ms C wrote to the Complainant informing him that having discussed his concerns at a meeting on the 1st April 2015, reviewed the interview notes and spoken to the interview board, she had concluded that the decision of the interview panel would be upheld.
Conclusions of the Equality Officer
4.1 I have to decide if the complainant was discriminated against in relation to promotion on the ground of race. In reaching my decision I have taken into account all of the submissions, oral and written, made to me by the complainant in the course of my investigation as well as their evidence presented at the hearing. Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.2 I refer to the high court decision of O’Higgins v The Labour Court and UCD [2013 No 21MCA] In the original decision the Labour Court give a useful précis of what needs to be considered when looking at whether a promotion competition is tainted with discrimination:
1. It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination.
2. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.
3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts.
4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.
5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.
6. A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.
7. Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
8. The court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution’[3]
4.3 At the hearing of the complaint I heard direct detailed evidence from Ms A, Mr B and Ms C along with relevant documentation. I found them all to be reliable, consistent witnesses and I accept their account of a considered and appropriate selection process. I find no evidence that the process was tainted by discrimination as alleged by the complainant. The complainant submits that Ms A was selected for her job using a less rigorous process. Regardless of speculation by the complainant in this regard I find no evidence that failure of the respondent to apply identical processes in the context of this complaint mitigates the failure of the complainant to meet the required standard in the process which is the focus of this complaint.
4.4 Further, it is apparent that the position for which the complaint was applying for was completely different to the role he had been occupying and the conclusion by the interviewing board that he does not have the appropriate experience was a logical, appropriate and correct one free from any consideration of the complainant’s race. I find nothing in the interview process of sufficient significance to raise the inference contended for.
4.5 The complainant has founded much of the reasoning for his complaint on the contention that Ms. A prevented him from giving further relevant examples during the interview. Having heard evidence from the complainant and Ms. A, I am satisfied that Ms. A was in fact attempting to help the complainant by directing him to more relevant areas for discussion as the examples the complainant was trying to introduce were not relevant.
4.6 Having reviewed the documentation submitted by the parties and their oral evidence, I find that there are no facts from which discrimination can be inferred. There is no evidence of unfairness in the interview process or of irrationality in the panel’s decision to find the complainant did not have the relevant experience.
Decision
5.1 In accordance with section 79 of the Employment Equality Acts and section 41(5) (a) (iii) of the Workplace Relations Act 2015, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that he was subject to discriminatory treatment on the ground of race.
_______________
Peter Healy
Equality Officer/Adjudication Officer
15th March 2018
[1] [2013] 24 ELR 146
[2] [2014] 25 ELR 1