EDA1922

This is an appeal by Mr. Selvaseelan, ‘the Complainant’, of the decision of an Adjudication Officer, (AO) of the Workplace Relations Commission, (WRC), that the Health Service Executive, (HSE), ‘the Respondent’, had not discriminated against him on grounds of race contrary to the Employment Equality Acts.

The Complainant is of Indian ethnicity and is an Irish citizen. He worked for the Respondent from November 2004 as a Senior Occupational Therapist, (SOT). In March 2015 he applied to fill a temporary vacancy as an Occupation Therapy Manager, (OT Manager), to cover a period of maternity leave. Only two people applied. The other candidate was ineligible and the Complainant was the only candidate interviewed for the position. The Complainant was deemed not to meet the requirements of the position by a two person interview board comprising Ms. Karina McDermott, the Acting Occupational Manager whose position was to be filled, and Mr. Donal Cassidy, Primary Care Development Officer. The Complainant was deemed to have fallen short of requirements under three competency headings.

The Complainant lodged a complaint about this decision. The basis of the complaint stated to the General Manager was that from the start of the interview and at regular intervals throughout, both interviewers specified that they only wanted examples related to the Complainant’s work within the HSE and that the interviewers had prevented him from completing answers where he cited examples from experience outside the HSE.

The Complainant met with the General Manager and was given the interview notes and he communicated further with her to cite examples from the notes to support his complaint. She wrote to reject his complaint, having discussed it with the board members. The Complainant appealed this decision and this appeal consisted of a review of documentation, following which he was advised that no deficiency in the process had been identified.

The Complainant lodged his complaint with the WRC. The AO concluded that, having reviewed the evidence, he could find no facts from which discrimination could be inferred.

The Complainant appealed this decision to the Court.

Complainant’s arguments

The Complainant was discriminated against on grounds of race as he was treated less favourably than Ms. Karina McDermott, ‘the Comparator’, of ethnic Irish origin and an Irish national. Ms. McDermott was appointed to an ‘acting’ position as an OT Manager without any requirement to compete and contrary to the applicable guidelines. She was regularised subsequently into a permanent appointment, again without any requirement to compete.

The Complainant was found not to meet the requirements of the post to be filled on a temporary basis but he was the only Occupational Therapist, (OT), within the HSE area to be a serving Council member of the Association of Occupational Therapists of Ireland at the time of the relevant competition and he was the only OT in the area to serve as a National Expert Panel Group member with the Dept. of Health Disability Unit. He was the only OT in the area to be awarded an HSE scholarship to complete an M.Sc. in Health Management, something that his manager had described as relevant to his current role and to any future management role in the HSE. He was the only OT in the area to impact positively on practice-based research skill training of practicing OTs on a national scale.

Just three months after this competition, the Complainant was scored to be competent for a permanent post as an OT Manager in a different catchment area and was placed in 5^thplace on a national panel filled by an external, open competition and in 2016 he was placed in 4^thplace on a national panel for a permanent role as an OT Manager.

The competitive process was unfair to the Complainant and this was due to his ethnicity. He was prevented from giving examples of his competencies that were outside his HSE experience. The interview board had inappropriate access to his application prior to preparing questions and assessment criteria. The core competencies specified as required differed significantly from those assessed at interview. The board engaged in inappropriate consensus marking. The board was not aware of the context of a research example given by the Complainant. The marks awarded for competencies were not broken down.

There is evidence of systemic discrimination against OTs of Indian ethnicity in the HSE.

Of 580 Senior OTs in the HSE at the time of the relevant competition, 21 were of Indian ethnicity. However, of the 59 OT Managers, none was of Indian ethnicity.

Respondent’s arguments

The AO was correct in ruling that no discrimination occurred.

As per the case ofO’ Higgins v. University College Dublin (2013) 24 ELR 146it is not for the Court to look behind the decision not to appoint the Complainant ‘ unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result’.

In the instant case, the recruitment process was conducted pursuant to an HSE Circular introduced in October 2013 and which provides that temporary posts being filled for more than three months must be filled by competition. The guidelines produced with the Circular require candidates to demonstrate at interview that they possess the experience, competencies and skills listed in the Job Specification.

The Complainant has not offered any facts from which it may be presumed that there has been direct or indirect discrimination on the grounds of race. The comparison with Ms. McDermott is not valid. The process used for her appointment to a temporary vacancy four years earlier was the appropriate one at that time. The Complainant would not have been eligible to compete for the position at the time, by reference to job location. This process was changed in 2013 and the appropriate process was used in the 2015 competition. The Complainant cannot seek to compare his treatment in an entirely different process with the treatment of another individual many years previously in a process that had ceased to exist.

In all exchanges with the Respondent subsequent to the relevant competition, the Complainant never alleged that he was unsuccessful due to discrimination on grounds of race.

No discrimination occurred. The Complainant was not successful because, in the considered view of the interview board, he did not display the competencies required to the level expected by the board. The board was concerned that the Complainant had not shown an acceptable knowledge and experience in the areas of key management skills including leadership, quality assurance, risk management and change management. Both interviewers had previous interview experience and training. Mr. Cassidy, in particular, had extensive interview experience.

Mr. Cassidy, following the complaint and having reviewed the documentation, advised the General Manager that he had no recollection of the candidate being interrupted, as alleged.

It is for the Respondent to determine the relevance of work experience and examples given to demonstrate competencies. That is not a matter for candidates to determine.

The decision not to appoint the Complainant was not influenced by the Complainant’s race. The process used was fair. It is inappropriate to draw comparisons with Ms. McDermott and no evidence has been adduced to suggest that other applicants for the relevant position would have been treated differently. The allegation that the outcome of the process was pre-determined is baseless and refuted in its entirety.

Other subsequent outcomes from different interview boards when assessing the Complainant are not relevant as a variety of factors may influence success at interview.

The Complainant’s use of statistics is partial and incomplete and fails to show that other nationalities, apart from Irish, are included in the numbers of OT Managers and it is, undoubtedly, the case that some of those showing as ‘Irish’ nationality are of different ethnic backgrounds as, indeed, the Complainant would be shown in any statistical analysis of nationality.

The burden of proof rests with the Complainant and is not shifted by his mere assertions.

Witness evidence

Mr. Jerry Selvaseelan

Mr. Selvaseelan, ‘the Complainant’, gave evidence in which he elaborated on the points in his submission. He gave evidence of his qualifications for the position. He stated that management skills were not stated specifically to be an essential competency. He stated further that earlier guidelines on the filling of temporary positions were breached in the appointment of the Comparator.

The witness gave evidence regarding the interview, stating that he was blocked from giving examples of competencies that were outside of his HSE experience, despite his protestations. He gave evidence that the interview board discussed the questions to be asked after he had submitted his application when they knew that he was the only eligible candidate. He outlined how inappropriate consensus marking was applied and of how the board was not aware of the significance of examples given by him. Furthermore, he gave evidence that there was no formal marking system in place and that there was no breakdown of marks under each competency.

The witness elaborated on what he stated to be preferential treatment of the Comparator. He dealt with the point made by the Respondent regarding his use of statistics by pointing out that it was not for him to make a case on behalf of other ethnicities.

Under cross examination and questions from the Court, the witness confirmed that he was alleging that the interview board had conspired to discriminate against him on grounds of his Indian ethnicity and he stated that he did not accept that the HSE could not look behind the figures to ascertain the ethnic background of all OT Managers and that he believed this would validate his point about the absence of people of his ethnic background among this group.

When it was pointed out to him that the competition documentation was clear in stating that supervision and management were included among principal duties and that candidates would be expected to demonstrate managerial ability, the witness argued that this did not establish that these were essential competencies as they indicated a requirement to demonstrate an ‘ability to’ manage rather than an expectation.

The witness disputed the suggestion that he seemed happy at the end of his interview.

The witness stated the possibility that he was both the victim of a conspiracy by the two board members and that there was systemic discrimination against OTs of his ethnicity in the HSE.

Mr. Colum Arthur

Mr. Arthur is a Human Resources Manager in the HSE. He gave evidence that the guidelines in place when Ms. McDermott was assigned to higher duties without a competition were never adhered to because they issued in 2010 and in the years after that no manager would willingly allow a staff member to leave their area because the moratorium on filling posts meant that they could not be certain of replacement. As a result, ‘acting’ or temporary assignments were done locally on a ‘senior/suitable’ basis. The Complainant would not have been eligible, as a result, for the temporary assignment secured by Ms. McDermott.

Under cross examination, the witness stated that if the Complainant had been the most ‘senior/suitable’ in the area at the time of Ms. McDermott’s assignment and if he had been interested, he would have been assigned to higher duties without the necessity to compete. The Complainant worked in another area, so was not eligible to be considered at that time.

The witness confirmed that the failure to follow their own guidelines at that time was contrary to the Commission on Public Service Appointments, (CPSA), guidelines.

Mr Donal Cassidy

Mr. Cassidy was a member of the interview board that interviewed the Complainant. He outlined his experience as an interviewer.

He stated that the discussion with his fellow board member regarding the questions to be asked resulted in agreement as to which competencies each would cover and that they would each compile the questions individually for the competencies on which they were concentrating.

With regard to the conduct of the interview, the witness stated that he had no recollection of it being abrupt nor could he recall the board stating that only certain examples would be acceptable. On the contrary, his recollection was that certain competencies were being tested and questions were asked under these headings designed to facilitate the interviewee in providing the most useful examples. The fact that some interview notes seemed to end abruptly under certain competency headings meant nothing other than that the interview was moving on.

On the question of marking, the witness outlined an approach whereby there was a series of headings ranging from ‘Unsuitable’ upwards and within each of these headings there were three bands. The member of the board not asking questions at any given time took notes. The questioner made a reviewable assessment of where to place the interviewee in the marking system. After the interview the note-taker read back the notes to the questioner and the board reviewed the notes and evaluated where to place the candidate under the headings and bands. His recollection was that all competencies were weighted equally in the marking.

The witness stated that the board concluded on the basis of the interview that the Complainant had failed to reach the standard required under three competencies.

Under cross examination the witness re-stated that he had no recollection of any abrupt interventions by the board during the interview.

The witness stated that there was nothing unusual about the interview and that there was no element of discrimination in the conduct of the interview.

Ms. Karina McDermott

Ms. McDermott gave evidence that she was going on maternity leave in 2015 and that it was necessary to find a temporary replacement and, as a result, she sat on the interview board with Mr. Cassidy.

She explained that in 2011 she had been assigned to ‘act’ on higher duties initially for a period of 8 weeks due to a planned re-configuration of work. She had been the most senior of Senior OTs in the area to express interest and had been selected. The re-configuration had never happened and she had been left in place until eventually her position was regularised in 2018 as a result of a Labour Court determination.

She explained that Mr. Cassidy and herself had devised the questions to be asked individually after they had decided who was covering which competencies. She said that she found suggestions that the Complainant had been prevented from giving examples of his choice as baffling but she offered that each competency had been allotted a set time frame and that it was possible that the board had prompted him to complete his answers within the relevant time. She stated that the board encouraged the Complainant to give more examples in order to assist his candidacy and that they tried to keep the process free flowing.

She reiterated Mr. Cassidy’s explanation of the marking system.

The witness stated that ,having filled the position herself, she was very conscious of the people management demands with 25 staff and that she regarded this as a core competency because she believed that a lack of useful experience would be a real problem.

The witness stated that she, above all, had reason to hope that the Complainant would be successful as, having failed to fill the position, the result was a most unsatisfactory rotation of the position for 10 weeks at a time among colleagues.

Under cross examination, the witness thought that whereas Mr. Cassidy had believed that their discussion regarding a marking scheme had been conducted by e-mail, she thought that they had also met in person. She accepted that this was after the application was received but she noted that there was a very tight time frame to conclude the process before she left and that they were anxious to conclude, not least because continued approval for filling the post was uncertain.

She accepted that since becoming a Senior OT she had not been required to compete for either the ‘acting’ or substantive position as OT Manager.

She accepted also that although Senior OTs can often acquire relevant experience managing OTs, the Complainant was unfortunate to be working in an area where that was not possible.

The Law

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to 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 insubsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

The comparators.

28

28.— (1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(a) in relation to the civil status ground, C and D have different civil status ;

(b) in relation to the family status ground, C has family status and D does not, orvice versa;

(c) in relation to the sexual orientation ground, C and D are of different sexual orientations;

(d) in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, orvice versa;

(e) in relation to the age ground, C and D are of different ages;

(f) in relation to the disability ground, C is a person with a disability and D is not, orvice versa, or C and D are persons with different disabilities;

(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;

(h) in relation to the Traveller community ground, C is a member of the Traveller community and D is not, orvice versa.

(2) In the following provisions of this Part, any reference to C and D which does not apply to a specific discriminatory ground shall be treated as a reference to C and D in the context of each of the discriminatory grounds (other than the gender ground) considered separately.

(3) Any reference in this Act to persons having the same relevant characteristic as C (or as D) shall be construed by reference to the discriminatory ground in relation to which the reference applies or, as the case may be, in relation to each of the discriminatory grounds (other than the gender ground) separately, so that—

(a) in relation to the civil status ground, the relevant characteristic is having the same civil status as C (or, as the case may be, as D), and

(b) in relation to the family status ground, the relevant characteristic is having the same, or the same lack of, family status as C (or, as the case may be, as D),

and so on for each of the other discriminatory grounds.

Deliberation

The Complainant’s case is that he was treated less favourably than Ms. McDermott, ‘the Comparator’, who is an Irish national and of Irish ethnicity and that the reason for this less favourable treatment is that he is of Indian ethnicity. His case is that this discrimination arises in either, or possibly both, the form of discrimination against him by the members of the interview board and/or systemic discrimination by the HSE against OTs of Indian ethnic origin.

In reaching its determination, the Court looked at both claimed possibilities.

The basis for the claim regarding possible discrimination against OTs of Indian ethnicity generally within the HSE is the statistic that not a single OT Manager, out of a total of 59, at the time of the relevant competition was of this nationality, despite the fact that 21 of 580 Senior OTs were of Indian nationality.

There is no doubt that statistics can play a valuable role in identifying possible indirect discrimination.

The Complainant cites the example of the case ofJohn Gillen v. Dept. of Health and Children (EDAO412)in which the Court noted that a marked statistical difference in success rates for different age groups could give rise to an inference of discrimination. Another case quoted in a different context by the Complainant,Revenue Commissioners v O’ Mahoney (EDA-033),also identified the value of statistical information in aiding the task of establishing if indirect discrimination occurred.

The Court has looked at the information provided by the Complainant and that provided by the Respondent. It seems to the Court that if there was a systemic problem of race discrimination in the OT service, this would be reflected in discrimination against non-Irish more generally. It is conceivable that particular nationalities or ethnic groups could be singled out for specific discrimination. If a UK national, for example, was to claim that there was discrimination against UK nationals, given the history between the respective nations such a claim would have to be examined closely as the possibility could not be dismissed. There is no obvious reason why Indian nationals should be singled out for specific discriminatory treatment and no such reason was put to the Court. Therefore, the Court looked to the overall figures. These are marginally more positive in terms of the distribution of OT Managers by nationality, as 3 of the 59 Managers at the time of the competition were non- Irish, non-UK and non-EU. This is not a high figure and it warrants further consideration. The Respondent explained that these figures show nationality and not ethnicity and that even the Complainant on this basis would show up in the figures as Irish. Furthermore, they point to the fact that promotion opportunities are limited , 59 such posts with 580 potential competitors, and were at zero or near zero throughout the recent recession. Therefore, it might be expected that the non-Irish, who only began to be recruited in the last 15 years or so in significant numbers, would only be coming through to promotion posts at this time. They state that this is the reason for improvements in the figures since the competition in question and that it is not, as the Complainant asserts, the result of his complaint.

On balance, the Court finds the explanations of the Respondent to be plausible and, as a result, the Court does not believe that aprima faciecase has been established so that an inference of discrimination can be drawn from these facts.

The second pillar of the Complainant’s case is that the Comparator, of Irish nationality and ethnicity, was treated more favourably than him. The Comparator was assigned, initially temporarily and subsequently on a permanent basis, to an OT Manager post without being subject to a competitive process. S 6(1)(a) of the Employment Equality Acts defines discrimination as more favourable treatment, under any of the nine grounds of discrimination provided for in the Acts, afforded to a comparator who is in a comparable position. The ECJ dealt with this issue inGillespie v. Health and Social Services Board (1996) ECR475when it pointed out that discrimination arises by the application of different rules to comparable situations or the application of the same rules to different situations. The question for the Court, therefore, was whether the Complainant and the Comparator were in a comparable position when it came to filling the position in question. On a cursory glance at the facts, it might be suggested that the two situations were directly comparable. However, the principal fact is that in 2013 a collective agreement was reached which, partially at least, was designed to put some structure on the temporary filling of posts in view of what had been happening during the period of a moratorium on filling posts. In that period, temporary positions had been filled by the assignment of the most senior/suitable staff member in the budget area. As Mr. Arthur explained in evidence, in the circumstances of the time, no manager wanted to let a staff member leave their area for fear that permission would not be given for a replacement. The Complainant is correct in his assertion that this practice was in contravention of the Respondent’s own guidelines and those set down by the CPSA. The Court needs to examine not this contravention but ,rather, to examine whether the circumstances that applied pre-2013 were comparable to those that applied post- 2013.

The Court is not asked to judge if the pre-2013 practices were discriminatory in themselves at that time and will refrain from offering an opinion. The Court is being asked to judge if the application of different rules, post - 2013, to the Complainant, compared to those applied to the Comparator, pre-2013, amounts to the application of different rules in comparable situations. The Court is of the view that if the Respondent had continued to apply the pre-2013 practices in the circumstances of 2015 then, self-evidently, this would have amounted to the application of the same rules to different circumstances, (as per the ECJ’s definition of discrimination), as the moratorium on filling positions had eased considerably and, in so doing, the Respondent would have been exposed to the possibility of cases of discrimination being brought against them. Therefore, the Court believes that the requirement of s.6(1) (a) of the Acts to show more favourable treatment of a comparator in a comparable situation has not been met to the point where the burden of proof should shift to the Respondent as noprima faciecase has been established.

It falls, therefore, to the Complainant to prove that any alleged defects in the interview process had the effect of discriminating against him on grounds of race. No evidence was offered by him to support his assertion that the interview board was biased against him apart from the defects that he claims in the interview process.

The Court looked at each of these.

There is a direct conflict of evidence between the members of the board and the Complainant regarding whether he was prevented from citing non-HSE examples under the various competency headings. The Court noted, in particular, the evidence of Ms. McDermott, who drew attention to the fact that there were time limits set for responses under each competency being tested. It is possible that the understandable desire of the board to keep the interview flowing led to misunderstandings and a feeling on the part of the Complainant that he was being prevented from providing the necessary expansion on his answers. The only other alternative explanations are mis-recollections on the part of either the board members or the Complainant or that one or other lied deliberately under oath to the Court. There was nothing about the demeanour of either the Complainant or the board members in evidence that could have led the Court to the latter conclusion.

The Complainant argued that the questions and assessment criteria should have been drafted prior to his application being received by them. He cited the observations of the Equality Officer inNic Fhlannchadha v. Colaiste Mhuire DEC-E2004-058that it would have been prudent to have drafted assessment criteria prior to applications being received. However, as the Respondent noted, the ruling in that case went on to find that this practice, in itself, did not amount to discrimination. The Court concurs with the Equality Officer’s observation and finding on the matter.

On the question of the testing of core competencies, the Complainant argued that the assessment at interview did not match the core competencies. He argued that quality assurance and performance management were explored in detail at the interview but were not part of the advertised competencies. Reading the Job Specification, the Court believes this to be incorrect. The ‘Principal Duties and Responsibilities’ listed include the following;

- To manage the staff and other resources as effectively and efficiently as possible in delivery Occupational Therapy

- To manage and supervise staff of the Occupational Therapy Department including professional supervision, staff education and professional development

-To ensure the highest standards of practice appropriate to a quality Occupational Therapy services are maintained and improved within the resources available.

Clearly, a candidate in this competition had to expect to be questioned about quality assurance and performance management.

The Job Specification listed 29 duties and responsibilities and stated that this was not an exhaustive list. In the view of the Court, the board was entitled to decide which of the areas listed to test and, indeed, were free to decide not to test others.

The Complainant cited a number of cases where lack of clarity in the marking process was found to infer discrimination. In particular, he cited cases that dealt with what he described as ‘consensus marking’, which could allow one member of a board to wield undue influence. The marking system used is set out in the evidence of Mr. Cassidy above. The Court is satisfied that the system used, which is widespread in the public service, has not been shown by the Complainant to have any aspects that are inherently discriminatory on grounds of race.

The Complainant states that an example given by him was a practice-based research project but was treated by the board as a non-HSE example. Mr. Cassidy could not recall the exact circumstances at the interview. In the view of the Court, nothing of significance turns on this point.

The Complainant, citing the Equality Officer’s decision inBurke v. South Eastern Health Board DEC-E2003-014draws attention to the failure to break down marks under the various competencies. The Equality Officer’s observations in that case were reflective of the fact that two out of five competencies being tested comprised over 70% of the total marks available. In the instant case, all competencies were weighted equally and the Court can see no grounds to establish discrimination due to the marks not being broken down.

It is clear to the Court that the Complainant is a very highly qualified Senior OT. However, as noted in theHigginscase quoted above, it is not for this Court to judge if the Complainant should have been appointed unless the result was clearly unfair or manifestly irrational. Nothing that the Court heard leads it to that conclusion. The interview board tested competencies that were judged by the Respondent to be required for the post being filled temporarily. The board found that the Complainant fell short of requirements under three competency headings. That decision was for the board to make. The Court has neither the competence nor the jurisdiction to second guess that decision. The Court’s role is simply to judge on the available evidence if the Complainant was discriminated against on grounds of race. The Court determines that the Complainant has not established his case.

Determination

The Court upholds the decision of the AO that the Complainant was not discriminated against on grounds of race contrary to the Employment Equality Acts.

Signed on behalf of the Labour Court



Tom Geraghty
MK______________________
20 June 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.