Complainant

Respondent

Parties

Breda Rafter

The Public Appointments Service

Representatives

Michael Hegarty

Reddy Charlton Solicitors

Grainne Gilmore BL 

Karen Duggan Solr Chief State Solicitors Office

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-00016143-001

05/12/2017

The Workplace Relations Complaint Form herein issued on the 5th December 2017. This case was ultimately heard over four hearing days unfortunately spread out over 17 months. Other days given for hearing were subject to postponements arising out of unavailability. The Complaint is that the Complainant’s career has been stalled by reason of the Employer failing to promote women and women of a certain age into senior positions.

The Complainant was represented by her Solicitor. The Complainant has had a long and distinguished career and believes that she has been denied the opportunity to advance that career by reason of either her age, or her sex, or both. She says that her employer has discriminated against her on these grounds. The Complainant gave her evidence and was cross-examined. One further witness presented in support of the Complainant. I was provided with a substantial submission, a book of evidentiary documents and relevant case law. The Complainant understands that she must establish a Prima Facie case from which an inference of discrimination can be drawn. The Complainant’s final submission was made on the 29th of January 2020.

The Respondent was represented by Solicitor and Counsel. The Respondent’s case was presented by way of written submission (three separate submissions in total) together with relevant supporting documentation and case law. I additionally heard from a number of witnesses on behalf of the Respondent. I heard from the Assessment panel who dealt with the Complainant to better understand the nature and internal workings of the process complained of. I also heard the evidence of the Head of Assessment Services, an Assistant Secretary and an Assistant Principal with the Respondent. The Respondent is being asked to meet the case of having treated the Complainant less favourably than another would be by reason of a discrimination or discriminatory acts (specifically on the grounds of her age and her sex). The Respondent through it’s various witnesses and submission, has sought to meet the case. I accept that the Respondent has (in consequence of the allegations made) also felt obliged to assert and protect the probity, integrity and fairness of the entirety of it’s operation and the case has consequently become somewhat larger than might have been anticipated. The Respondent’s final submission was made on the 29th of January 2020.

I have carefully considered the evidence adduced in the course of the several days of hearing before me. I have also considered the legal and factual submissions tendered as part of the process. I am satisfied that both parties were given every opportunity to make their case and to challenge the case made each by the other.

There can be no doubt that the Complainant is a hard-working, skilled and experienced individual who has risen through the ranks of the Public Service over the course of her exceptional career. The Respondent has not questioned the Complainant’s ability as part of its own case. By 2017 the Complainant’s career was in it’s 39th year. By 2006 the Complainant had already made the grade of Assistant PO and thereafter became eligible to apply for PO (Higher) in and around 2010. It is certainly worth noting that the Complainant had been “acting up” as a Principal Higher Officer from 2015 (covering an extended sick leave). I understand that this means the Complainant undertook the burden, role and function of a PO without the increased salary. This practise had been widespread during the last economic downturn when there was a freeze on recruitment and promotion.

The Complainant believed that her career was not progressing in the particular Government Department wherein she had been workings since 2006, and she turned her attention to the competitions which were sporadically hosted by the Respondent Recruitment body for her own career advancement. No issue has been made of nominating the Respondent body as being the Employer. It seems appropriate in this particular workplace.

On the 24th of April 2017 the Complainant applied (through the Respondent recruitment body) for a PO role in a Government Department that was not her own. She believed herself to be well placed to secure this position. To her surprise, the Complainant did not even make it to the interview stage as the shortlisting panel deemed her not to have the practical experience necessary. The Complainant was most disappointed, and personally believed that the Respondent Body had not provided the said shortlisting panel with all the relevant information in a timely manner (there was evidence that her application had initially been lost). Thereafter, the Complainant was tardy in seeking a formal review of the decision which was therefore refused. The Complainant was understandably somewhat upset in the aftermath of this experience. It is however noted that the Complainant did not link any discrimination with the outcome at the time. In the course of the hearing before me, the Respondent provided evidence on behalf of the said shortlisting panel.

Then later in 2017 the Respondent entity advertised that it was recruiting externally and internally under a recruitment process known as Senior Management Opportunities at a PO level (2017). I understand that the intention was to create a panel of potential POs (up to 60 in total) who could be recruited onto a panel and placed into PO positions as and when openings and opportunities arose. Again, the Complainant felt she was very well placed to get herself onto the panel being created. 1650 (reduced to 1500) people applied. The Complainant gave evidence that she put every care and attention into the application and interview process. I understand that there was a First Stage online application involving a relevant simulation and analytical exercises. The Complainant performed well enough, being placed at 166 in order of merit. Ultimately, 211 were called through to the Second Stage which was conducted in an assessment centre. I understand that there were three parts to this Second Stage and a qualifying candidate had to achieve the required standard (pass) in all three aspects before the first 60 got placed onto the panel. This was, therefore a highly competitive process comprising:

The Supervised online Exercise – The Complainant did well in this Exercise which involved a supervised job simulation and a critical analysis exercise. She passed this exercise.

The Strategic Management Exercise – To absorb the information pack provided, to prepare a report and thereafter make a presentation and answer questions on that report. It was the outcome of this Exercise that has given rise to the within complaint and I will detail the facts (as I understand them) below.

The Interview – The Complainant did well at interview, scoring in the high percentile across all the disciplines.

The Respondent had initially been reticent about making every aspect of it’s processes available to the hearing. I note that their final decision to release certain information (what they called the “presentation key”), was made in the interests of transparency and fairness to the Complainant and to allow me a better understanding of how the Respondent operates. I fully understand the difficulty the Respondent had in revealing the document in question and I am grateful that they opted to allow us to have sight of same if only to dispel any doubts which I or the Complainant had in connection with the assessment process. As it happens a not inconsiderable amount of time was spent analysing the said key in the course of the hearing. I have to further note that, at the time the Complainant presented her complaint, the Complainant had not been given sight of this said key. The Complainant only learnt about how the assessment of her performance was conducted in in the course of this hearing. The Complainant Solicitor asked that I note his dissatisfaction with this fact.

The Strategic Management Exercise involves the candidate being given a real-world scenario and then being asked to present a strategic report based on the information given (this can take any format – slides, graphs, flip charts, text etc). The candidate is allowed 90 minutes for this part of the exercise. Thereafter the candidate will be expected to make a presentation on the report for 15 minutes and will be expected to go through a Q and A session on the report and presentation for a further 15 minutes. In her case, the Complainant made a presentation to a two-person Strategic Management Assessment Board – a Mr. NO and a Ms. BG.

It was the outcome of this Exercise that has been the trigger which has given rise to the within proceedings.

In her evidence the Complainant says that she was very happy with her overall performance across the three aspects of the Second Stage. However, the Complainant was subsequently notified on the 14th of October 2017 that she had failed to make the qualifying score in the Strategic Management Exercise which immediately disqualified her from being considered for the panel being created. The Complainant was advised that out of a potential total of 200 marks for the strategic management exercise she had achieved just 63 and this was where the minimum requirement to pass was 80 marks. As against this, the Complainant had scored very highly in the Interview process which took place directly after the Strategic Management Exercise had been performed. The Complainant indicated that she was shocked at the outcome. It did not make sense to her that she could perform so well in one part (the interview) and so disastrously in the other (the Exercise). The Complainant exercised her option to have the process and decision reviewed. There was an informal review (outcome notified on the 21st of October 2017) followed by a formal review under Section 7 of the Commission for Public Service Appointments code of Practise to positions in the Civil Service. The outcome of the formal review was notified to the Complainant by letter dated the 29th of November 2017 from a Mr. CO. The Complainant was not successful in reversing or otherwise interfering with the scoring of the strategic Management Exercise Board. This letter of November 29th explains some of the rationale behind the procedures adopted in the entire assessment process. For example, the letter advises that it is perfectly normal that doing well at Interview does not automatically mean you will do well in the report preparation and presentation part of the assessment. The evidence is that the management Exercise is not intended to explore an ongoing professional skill-set, but it is intended to look at immediate and on-the-spot performance and response.

Two comments made by the strategic Management Assessor Board (NO and BG) came particularly into focus. The provided feedback was :

“ B,,,had a friendly approach to presenting.”

“However, B..did not identify the key strategic issues to be addressed and the wider implications of options. Needs to work on her nerves as can come across as unsure”

(emphasis added )

There can be no doubt that the words used (and that I have emphasised above), were seen by the Complainant as a diminishment of her professionalism, her career, her experience and her capabilities. An inference has arisen (of the type referenced to in O’Higgins   -v-     University College Dublin [2013] (which was opened to me).The Complainant has, to my mind, made out the Prima Facie case that the assessor Board (whether consciously or not) had described her pejoratively and carelessly so as to give rise to an inference that she was a silly woman and out of her depth. This is an objectively discriminatory image based on gender. In making these observations I am satisfied that the Complainant was treated less favourably then a male candidate would be. These words would resonate in a completely different way if used about a man and, in any event, there was no evidence such language had been used about any male candidate. Describing someone as “friendly” in the context of a high-level Management position cannot be considered a professional assessment of a professional person. It might be considered a facile or meaningless assessment meant, perhaps, to give the Complainant some comfort. Going on to say that the Complainant was “unsure” and needed to work on her “nerves”, has unfortunately got a patronizing and insulting overtone which portrays or stereotypes the Complainant as insecure, highly-strung and unable to function in the workplace. I am in no doubt that (and indeed accept that), when faced with these comments, the Complainant perceived that she was being discriminated against on the basis of her sex and perhaps, to a lesser extent, on her age. In her evidence before me, the Complainant described the words as “offensive”, “derogatory” and “misogynistic”.

I think that (on reflection) both NO and BG recognised that this could be an interpretation given to their printed words. This fact was quite honestly conceded in CO’s letter of the 29th of November (and therefore well before the hearing) wherein he states that :-

“..in retrospect the Assessor Board could identify how the comment may have been misinterpreted…………………………………………………..   The Assessor Board asked that I apologise on their behalf for the way the comment may have come across to you. On foot of my review, I have made a recommendation for deeper consideration be given to summary comments”

I accept having now heard the evidence of both NO and BG that they had been given the appropriate training and assessment tools needed to score and mark the Complainant in terms of the Strategic Management Exercise. I also accept that these comments made by them are for the purposes of feedback on performance and do not, in fact, have any bearing on the marks being given for the content of the report and presentation thereof. The marks (of which the Complainant ultimately scored 63) are scored against a very strict set of criteria to be met by the candidate. The Respondent position therefore is that the written remarks had no relevance or impact to the scoring system and the ultimate outcome. The Complainant position is to conflate the two i.e. that persons capable of making such negative and discriminatory remarks, must also be presumed to have had a negative and discriminatory approach to marking the Exercise.

I note that in the last sentence above quoted, the Respondent has taken on board the fact that it’s training of interview panels should now include effectively a much deeper module on how to avoid the trap of unconscious bias (I was told in evidence that this had been a part of the training heretofore though clearly not with enough emphasis). The content of this sentence would also, I would suggest, be an acceptance of vicarious liability for the Assessor Board.

I heard a lot of conflicting evidence on how the actual Strategic Management Exercise process was perceived by the Complainant on the one hand, and by the assessment Board (NO and BG) on the other hand. The Complainant believes she prepared an excellent report, made a comprehensive presentation and answered any questions with self-assurance. NO and BG did not see it that way. Their assessment was that the Complainant missed most of the relevant points to be gleaned from the scenario/exercise presented. This meant, they said, that the presentation of the report she had prepared lacked strategy and was in the format of a simple regurgitation of the information received. This can be summed up in the previously quoted comment “B.. did not identify the key strategic issues to be addressed and the wider implications of options”

Another dispute arose in relation to how long the Complainant took to present her report. The Complainant believed she had used up to 11 minutes of the 15 provided, whereas NO and BG were ad idem in their assertion that the Complainant had only used up roughly 5 minutes of her allotted time. I know that some hand-written figures jotted in the margin of the original hard copy caused some confusion as to whether they indicated time or scores.

Both NO and BG gave evidence on their in-house training and on their familiarity with the said presentation key. They described how they put candidates at ease and how they operated the timing. Their job is simply to assess the individuals understanding of the brief given, how each candidate spotted the issues it raised, how they addressed the issues and how they had consideration for the positions of the various stakeholders. They were clear that their assessment related only to the performance on the day. The written report was considered after the oral presentation and, again, this was done on the day. They jointly assessed the scoring and in their evidence before me they indicated that they are satisfied that the scoring given fairly reflects the performance of this candidate. Their assessment was that the Complainant simply had not grasped the point of the exercise, failed to identify issues, and therefore missed out on the available marks. As against this, the Complainant gave evidence that she was on top of this brief, that she was “in the zone” (per her Solicitor) and that “governance” was her topic. She was shocked at the lack of marks and she suggested that the interviewers must have been “asleep”. She felt she’d hit many relevant points for which she received no marks. The Complainant took offence at the idea that she was “rummaging” for her information – as said in evidence.

The Complainant, in her evidence before me, clearly remembered being asked by GB about advising the Minister (in the context of the fictitious scenario given) and telling her that she would always advise a Minister - pointing out she would often do that in her career. I dwell on this, because it seems to me that this is perhaps evidence of the Complainant taking the opportunity to reference her career and experience to date which, in fact, was not what this exercise was about. This exercise was always about spontaneous analysing, decision making and strategizing. It was not about what the candidates previous experience might be. This whole exercise was, as I understand it from the evidence, an invitation to think somewhat outside the parameters of personal experience. In this regard, the candidate is specifically advised that “you have had no previous involvement with this task prior to this request.”(Per the Assessor Guide booklet) and “if you have content knowledge of any real situations that resembles the exercise scenario you should not draw on this to complete the exercise. Candidates should form their response based only on the information made available in the brief….” (Per the candidate brief).

I am satisfied that a forensic line by line examination has been conducted of how the Strategic Management Exercise Assessors (NO and BG) assessed the Complainant’s Report and Presentation. I think at hearing it was described as a “tortuous analysis”. A full booklet of documents (Book 2) was provided for the purpose of demonstrating exactly how every candidate was being assessed, and how (per the Respondent) every candidate was being treated equally The Respondent provided us with a Comparator Assessment to demonstrate a successful candidate’s report (again this was gone through thoroughly). I have to give credit to the Complainant’s Solicitor who certainly highlighted some anomalies in the process. Questions raised included - How could the Complainant have gotten through 9 slides in 5 minutes? How could only 5 boxes out of a potential of 40 been ticked? Why did the Complainant not even get the benefit of the box marked “other”? How could the Complainant have felt so good about the process that she went on to achieve a top mark in the Interview later that day? Why was there no over-arching quality assurance? How is it realistic to expect a candidate not to draw on experience? Are the Assessors in a position to treat the last candidate in a long day as fairly and freshly as they treat the first candidate? The scantiness and illegibility of notes?

I would make the observation that whilst any of the any of the issues so raised might give one pause for thought, does any of it amount to Discrimination?

A Mr. BL gave personal evidence on the competencies of the Complainant. The endorsement was emphatic. However, the Complainant’s career abilities have never been in doubt and Mr. BL had to concede that he had no particular familiarity with the Strategic Management Exercise Model being used by the Respondent. The Respondent wants it recognised that this process is unusual. The Respondent has asserted its entitlement to operate this bespoke model for the assessment of competencies. A lot of research went into creating this model. The Strategic Management Exercise was always intended to assess a candidate above and beyond what might be familiar to a candidate in an interview situation. The Respondent balanced the Complainant’s witness BL with a Ms. AL who explained the research and time and effort that went into creating this Exercise. Overall, I was impressed by the robust Defence that the Respondent put up to protect the integrity of this assessment tool. The Respondent really cared that the Complainant (and I) would be reassured and persuaded that who you are and what your background is, is irrelevant in the Strategic Management Exercise.

It is unusual to be drawn so comprehensively into an interview process. Generally in cases of this nature involving the filling of posts it is not the function of the investigating body to substitute its views on the relative merits of candidates for those of the designated decision-makers. Rather, my role is to ensure that the selection process is not tainted by unlawful discrimination.

The significance of the failure to get through to the panel of potential POs in this process became immediately apparent to the Complainant when she could not apply within her own Department for a PO position which came up subsequently and which was pre-determined to be filled from the panel just created by the 2017 Senior Management Opportunities at a PO level. Therefore, in failing the Strategic Management Exercise, the Complainant had lost out on a slot on the panel and I heard evidence to the effect that over 50 PO positions have been filled from the panel since that time and the Complainant feels she has lost out on all these positions. However, I have to have consideration for the fact that even had the Complainant passed the Management Exercise there is no guarantee she would have made it onto the panel of 60. The only reference I have for her placement is position 166 of 211.

There is no doubt in my mind that the Complainant has been disappointed and indeed angered at the process and the failures as she perceives them to have been. The Complainant came before me asserting that her career path has been brought to a halt. To her mind the informal and formal reviews of the process created as many questions as they answered. As she was without the “key” earlier referred to, she could see no reason for such a personally disastrous outcome. The evidence adduced in the course of the hearing has sought to give the Complainant a more comprehensive understanding of the process though, I accept, this has done little to ameliorate her sense of injustice and there remains the fact that she was (to her mind) belittled by the remarks made.

I understand that the cumulative effect of the Complainant’s treatment (in various promotion applications) has given rise to a belief by her that her career has been derailed, but my duty is to distinguish between those facts and events which give rise to an unfortunate personal outcome, and those facts and events which are tainted by a discrimination giving rise to an obscured outcome over which an individual has no control.

The Complainant has invited me to consider the bigger picture and the possibility that there is a systemic difficulty in the recruitment services provided by the Employer, and that there is a consequential and resultant tendency to discriminate against women and particularly women over a certain age who are looking to get a job or looking to get a promotion within this particular workforce. The Complainant has prepared her own figures of the outcome of the Assessment process that she took part in, as well as a more general assessment of (job and promotion) outcomes across the entire workforce. I am asked to consider that there was a policy at play here. To possibly drive down the age of the workforce. The words of a Secretary General in the Department wherein the Complainant had been working have been quoted to me and used to possibly represent evidence of a policy across the board to bring in “new blood”. The particular Secretary General was not invited to give evidence and I note that some of his words were lifted from an Irish Independent Article. In her evidence the Complainant has sought to imply that previous attempts by her (from 2015 through to earlier in 2017) to get ahead in her career in her own Department have also been stymied by reason of this discrimination. The Respondent has distances itself from the remarks made and has pointed out that it is an independent statutory body free from being pressurised by other bodies. It guards its independence with zeal.

The Complainant has provided me with relevant comparator information (Appendix B -separate document). From the candidates selected it shows that men younger than her were all being placed on the panel. In fact, she says 95% of the candidates placed on the panel were under 50 years of age. In its cross examination of the Complainant on the bigger workplace contention the Respondent sought to systematically rebut each of her claims. The Respondent provided the Complainant with a breakdown of the success rates of the candidates (Tab 7 of Book 2). The Respondent has respectfully suggested that the Complainant’s figures are selective to suit her outcome. For example, it is explained that the reason that 95% of successful candidates were under 50 was because the 90% of the overall candidate profile was under 50. Interestingly, the Respondent figures also shows that as against men, a higher percentage of women come through the strategic Management Exercise with a pass. So, of 77 women candidates 32 pass. Whilst of 119 male candidates only 46 pass. Ultimately the Complainant was led to a point where she was invited to acknowledge that whilst she might have an honest perception (absolutely denied by the Respondent) that there was a case of oversight, incompetence and unfairness to be made against the Respondent, there was no reason to believe or assume that these factors had been brought about by reason of a policy of direct discrimination or by reason of an indirect discrimination. The Complainant did not accept this point.

For the sake of completeness, I want to acknowledge the evidence of Assistant Secretary BP who threw light on the process which gave rise to the finding that the Complainant did not demonstrate the level of practical experience necessary to fulfil the role which had been advertised earlier in 2017. I accept her evidence that she knew nothing of the complainant’s age and simply went on the basis of experience.

I was advised at the last hearing date that the complainant re-interviewed with the Respondent for a PO panel in early 2020 and this time, she has met with some success. It was interesting to be told that she found the assessment/interview process to have been changed in small ways which she feels are as a consequence of the points she had raised throughout this Adjudication process. So, for example, I understand there is now an official clock for all to see. I would have to pay tribute to the Respondent for these small improvements. The Respondent has invited me to find that the Complainant’s success is dispositive of the allegation raised. Counsel for the Respondent said that this outcome “certainly doesn’t speak to the systematic discrimination on the part of the ..” her client.

I appreciate that both parties put a huge effort into this case. Having been satisfied that the complainant had made out a Prima Facie case, the burden fell to the Respondent to rebut the inference drawn. On balance, I am satisfied that the Respondent has succeeded in this task. The Respondent has provided cogent evidence that the creation and the application of the strategic management exercise was not inherently discriminatory. Quite the opposite in fact. The Strategic Management Exercise is designed to ensure everyone is on a level playing field. I am therefore rejecting the Complainant’s argument that the words used (and which set up her Prima Facie case), were isolated and had no bearing on how she was marked and assessed in the Strategic Management Exercise. I would also accept that the Respondent comprehensively rebuffed the very general claims made by the Complainant as to the systematic disadvantaging of employees based on age or gender. There is no evidence of a direct or indirect discrimination against women or persons over 50 either getting jobs or being promoted in this workplace.

I am still however left with the original finding that the words used by the Assessor Board were discriminatory for the reasons outlined. The Employer has taken responsibility for these words and has apologised with reference to the Assessor Board for them. The Respondent could not rebut the inference drawn. The words used would be discriminatory in any context. In the circumstances, I am satisfied that the Complainant has established that she has been discriminated against.

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

CA-00016143-001 - For the reasons outlined, I find in favour of the Complainant and award her compensation. In the sum of €7,500.00.