Worker

Employer

Anonymised Parties

A Technician

Agricultural Services Company

Representatives

Andrea Cleere SIPTU

 HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033832-001

16/01/2020

The Worker alleged that there were breaches of the agreed pre-interview process. That the selection criteria adopted by the Interview Board at interview did not recognise her appropriate capabilities and qualifications and impacted her placing on the Panel for current and future promotions and placed a disproportionate disadvantage on her and impacted the outcome of the competition.

A promotional position for an Experimental Officer was advertised in March 2019 which the Worker applied for.

It was the Workers position that the entire process from beginning to end was fundamentally flawed through unfairness and was characterised by systemic failures.

The Worker exercised her right to appeal the outcome of the competition internally which proved to be unsatisfactory.

A number of vacant positions in the Organisation were subject to consultation and engagement between management and the union regarding the process of carrying out an internal recruitment and selection process. An email was sent to all staff on 19th March 2019 inviting eligible candidates to submit a completed application form from which four posts would be filled by successful candidates immediately and a Panel would be formed for the other successful candidates for any future vacant positions over the following two-year period. Attached to the email were several documents explaining the role and competencies for each of the positions and specific instructions were detailed for Management including completion dates for each step of the application process.

 In 2007 when The Worker previously applied for an Experimental officer vacancy, qualifications were a required competency in respect of the promotions process. The departure from this competency on this occasion represents a one-off organisation change in respect of the promotions process and would not generally have been favourable to the majority of candidates.

When the Worker previously sat for competitive interview for promotion to an Experimental Officer role she was successful in placement on the Panel but due to the moratorium on recruitment this Panel expired before the Worker was promoted having been positioned fourth on the Panel.

The agreed process required that each candidate fills in the appropriate fields and enters comments on the application form and sends it to the Head of Department (HOD), the HOD meets with the candidate to discuss said form and comments and signs the application and progresses it to the Head of Programming (HOP). Where the HOD is not the candidates Line Manager, a meeting was to be arranged with the Line Manager and both the HOD and the Line Manager were required to sign the application form.

In the case of the Worker the HOD was not her Line Manager, however both the HOD and her Line Manager failed to meet with her and in addition to this her Line Manager failed to sign off on the form at all. In the exceptional case of the Worker in respect of 25% of her time on non-core duties, it was her position that these failures were specific to her critical negative impact on her entitlement to fair procedures and competence in regard to the assessment.

The promotional policy provided for a meeting within the process for the Worker to meet with her HOD and this meeting did not go ahead at all. The Worker stated she was proactive in that she waylaid the HOD for a conversation regarding her application and his comments

The application form had four grading marks as follows:

Requires improvement / Does not meet requirements

Good / Meets requirements

Very Good / Often exceeds requirements

Outstanding / Almost always exceeds requirements

1t was the Worker's stated position and supported by PMDS that her Line Manager in the first instance and her HOD had no competence in respect of assessing her or providing commentary to the interview board on her management on the special database management which involved 25% of her work time. In that respect her HOD scored her two 5's and two 4's. The Worker was unhappy with the mark of 4 that the HOD allocated for Teamwork and Communication and Problem Solving, Creative Thinking and Decision Making as much of the work is based on interacting and communicating with various stakeholders such as researchers in house, technicians and research students. The Worker further contended that the information and data being collated in her role as Database Manager is a highly utilised database in the UK and Ireland and was not credited correctly in this process.

When the Worker's scores on the application form were calculated she obtained a score of 460 out of 500 which when converted to a percentage works out at 92%. The Worker stated that with no systemic failures and if the Worker's HOD had complied with the guidelines and the policy that the Worker would have been on merit accorded higher marks.

 The Worker attended for interview on 1 I th June 2019 with a Panel of four interviewers. The Worker was informed on the 16th of July 2019 that she was placed 10th on the Panel and received an overall score of 385 out of 500 which equates to 77% when converted. This outcome was unsatisfactory to the Worker and she sought to have a feedback meeting which took place on the 4th September 2019. During the feedback meeting the Worker requested that feedback be provided in writing however this was refused by the Chairman. The Chairman stated that "the interview performance is the only element being scored on the day". The Worker maintained this to be quite an extraordinary admission given the organisations commitment that candidature decisions are based on explicit evidence, a clearly identified contradiction in the process regarding stated criteria and consistency and how actual decisions are reached. Displeased at this juncture the Worker exercised her right to appeal the process to the internal Appeals Board, the outcome of the appeal was disallowed.

The Worker did not put comments on her application form in respect of the systemic failures at all levels of the process because she concluded that any career prospects would be negatively impacted were she to raise issue at that time. That conclusion was informed by an inappropriate one size fits all Job Specification approved by the line management structure and overseen by HR which failed to properly account for 25% of the Worker's work.

The Worker was further disadvantaged by the refusal of her Manager to reconsider his input into the application / interview process and as a result of the negative impact on the candidature by the organisation in removing on this sole occasion of the qualifications competency for consideration at interview and which did not benefit the Worker in the least.

 These qualifications were a desirable condition precedent in respect of the Worker taking up the job but were not deemed a commendable competency in respect of this promotion by the Employer.

The Employer Guiding principles provide that decisions are based on explicit evidence and their policy is to base all promotion decisions on demonstrated professional merit. The organisations position. in respect of this interview process was that "the marks awarded were the result of the interview process and not based on or to be combined with the marks awarded by the HOD on the application form. There was no correlation between the HOD scores on the application form and that of the final score awarded at interview in the case of the Worker or any applicant in this promotional competition ". The Employer position is contrary to expectation from a policy that on the one hand requires decision making on the basis of explicit evidence but then seeks to insinuate subjective opinion based criteria in the Worker's HOD did not discuss the application with her in advance of him completing the Manager Assessment, Overall Comments and Recommendations which compromised the general principle of objectiveness which provides that decisions are based on explicit evidence.

At the appeal hearing on this occasion when the Worker sought an explanation from the Chairman of the Appeals Board in respect of her placement at 10th compared with on the previous occasion he stated that" maybe others had joined the grade and had more qualifications". This was an extraordinary misunderstanding on his behalf as Chairman and was in direct contradiction of the Employer position that "qualifications were not an agreed competency in the interview process" as well a fundamental failure of understanding that there can be no new entrants to the Red Circle Technicians group.

The Worker did not feel that her professional merit and depth and breadth of technical knowledge has been recognised in this process. The quality of data collection and information collation in her day to day work and the contribution this makes to the organisation and the industry in particular her specialist area, which is widely used by researchers both Nationally and Internationally. It was stated that this work was previously carried out by a Head of Department and the Worker is the only person who carries out this work.

The Worker maintains that the process for the Experimental Officer promotion competition was flawed, the organisation had breached its own procedures which placed a disproportionate disadvantage on her and impacted the outcome of the competition.

The Worker commenced employment on the Technical Assistant Grade, on 4th December 1979 and advanced to Career Grade Technician on 1st April 1984.

The Moratorium on recruitment pay and promotions in the Employer and the wider civil and public service for the period March 2009 to October 2015, restricted promotional opportunities for staff.  It was later, on the 19th March 2019 that a promotional Experimental Officer Grade competition was launched in the Employer and staff at Career Grade technician level were eligible to compete.   

The Worker competed for promotion to Experimental officer Grade and, following her interview, was notified on 16 July 2019 of her result as being placed 10th on a Panel of 14.  The Worker sought interview feedback as she was disappointed with her result.  Feedback was provided to her on the 4th September 2019 in a face to face session with two of the interview board members, the Director of Research and the Assistant Director of Research.

Following this, the Worker exercised the internal appeals process as she remained unhappy with her result.  The appeal was heard by an Appeals Board on 10th December 2019 who recommended that the “Appeal has not been upheld and that the breach in process did not negatively impact the overall result in the promotion competition”. 

Following the Moratorium on recruitment pay and promotion a promotion competition was put in place for staff in the (Red Circled) Technician structure.  Interviews for promotion to Experimental Officer took place on the 11th and 16th June 2019, and the Worker competed as part of this process.  A total of 15 staff were interviewed, of which 14 were Panelled following the interview process.

Prior to the launch of the competition, Union and Management consultation took place so as to agree the competency framework, competition procedures, application form and the overall schedule for the competition.  The final documents were made available to staff and management on launching the competition on the 19th March 2019.  In addition, interview training was made available to interviewees and interviewers in advance of the competition.

The competition procedures set out the guidelines for filling the Experimental Officer promotions, including steps to be taken by the applicant and management as part of the application process.  The steps were as follows; 

Step 1: Section 1 and the Self-Assessment part of Section 2 of the application form to be completed by the applicant and forwarded to the Head of Department (HOD).  

Step 2: The HOD will discuss the content of the application with the staff member (and the Line Manager, where the HOD is not the Line Manager), following which the HOD will complete the HOD assessment under each competency heading and also the ‘Overall Comments and Recommendations’ part of Section 2.  

Step 3: Section 3.1:  The HOD, and Manager where HOD is not the Line Manager, sign the application and then forwards it to the Head of Programme (HOP) for review, comment and sign-off.

Step 4: Section 3.2, the Head of Programme (HOP) completes a review of the application, adds HOP comments and then signs and returns the completed application form to the HOD.  

Step 5:  Section 3.3, the HOD meets with the applicant to review the completed application with him/her and provides any clarifications as required. The staff member then completes Section 3.3 to include adding comments, as desired, for example any disagreement with the overall assessment and recommendation.  The applicant then submits their application to HR as directed. 

In order to provide the applicant with visibility within the application process, the applicant is the last sign-off on the application form.  Therefore, should he/she have any queries these can be raised in Section 3.3 of the form in advance of sign-off.

It was noted that the HOD provided the Worker with comments and marks on her application form ahead of a face to face meeting with her.  This was not in keeping with Step 2 of the process which was for the HOD to meet with the applicant in advance of completing Section 2.    All other applicants in the department are based off-site, which meant the meeting was conducted the phone.  The HOD did consult with the Worker’s direct Line Manager so as to be fully briefed on her role and her performance and in doing so, he was confident in assigning marks.  This approach was replicated across the department for all applicants.  The Worker in her meeting with the HOD did request him to reconsider the marks awarded on her application so as to revise some of them upwards. The HOD advised that the marks awarded were very close to the maximum mark available and that he felt it would be unfair to other applicants if he was to carry out a second review and revise her marks upwards.

Section 3 of the application required sign-off by the HOD and the Manager.  The HOD completed this section.  It is noted that the Manager did not sign the Worker’s form, which was in error, as he thought it was only the HOD’s sign-off was required.  Furthermore, the Manager did not sign any of the applications that came forward from staff within the department.  While this was unfortunate, the Manager confirmed that he fully supported the Worker in the application process having provided her with one-to-one support and guidance in completing her application form, as he did with all other applicants within the department.  

An opportunity existed for the Worker in the final sign-off of her application to raise concerns or comment as to a disagreement if any, with the overall assessment and recommendation as prompted by the pre-wording in the final section of the form.  However, the Worker signed off on the application form acknowledging that she had read and discussed her application form with her HOD with no indication of any issues of concern.  Had the Worker raised a concern on submitting her application, this would have been formally addressed by the Human Resource Department.

The Worker was called for an interview on the 11th June 2019 where she undertook a competency-based interview.   The Interview Board in preparation received an interview pack containing; interview procedures, application forms, note taking forms, marking sheets, board report forms.  The candidate was asked competency-based questions by each interview board member relating to their specific competency area.  It was clear to the interview board members that comments, assessments and marks on the application form were for guidance purposes only and that an independent interview mark was to be awarded based on each board members competency area mark following the interview process.  In this regard, the procedures note that “ratings awarded and the comments provided by the HOD on the application form are intended to assist the shortlisting and interview boards, as applicable, in a fair assessment of each candidate’s application for promotion”.   The Worker was marked accordingly in each competency area as per the interview process.  This process was replicated for all other 15 candidates.

On receipt of the outcome of the interview process the Worker was unhappy with her result and sought feedback as part of the interview process.  This was provided to the candidate by two of the board members the Director of Research and the Assistant Director of Research.  

It was following this that the Worker exercised the internal appeals process where it was recommended that “the appeal be not upheld and the breach in process did not negatively impact the overall result in the competition”.

The competition procedures were made available to staff and management on launching the promotion competition.  The HOD did meet and discuss with the Worker her application form, albeit, not in the same order or set time outlined in the procedures.  The Worker did make a request to revise her marks and the HOD declined as he felt it would be unfair to other applicants within the department.   

The Worker’s application form was not signed off by her Manager.  This was in error as he thought sign-off was only to be carried out by the HOD.  Again, all applications which came forward from the department were treated similarly.  In addition, the Manager provided one-to one support to the Worker and other staff in the department in guiding them in completing their application form.

The Worker had an opportunity to raise concerns relating to a potential breach of procedures or any other matter on submitting her application form to the Human Resources Department, but instead she signed her Application Form acknowledging that she had read and discussed her application/report with her Head of Department, and she noted nothing of concern.

Finally, the Interview Board members had clarity in their role in terms of the interview process whereby, the marks they awarded were as result of the interview process and not based on or to be combined with the marks awarded by the HOD on the application form.  There was no correlation between the HOD scores on the application form and that of the final interview score awarded at interview in the case of the Worker or any applicant in this promotional competition.

The core issues in this complaint are

 (a)whether the Worker was disadvantaged against other applicants in her application for promotion

(b) whether the Employers lack of following the set-out pre-interview procedure applied to the worker only and

(c) if the Worker was disadvantaged at the Interview stage of the process.

The core elements of the Workers claim were as follows and I summarise my conclusions on each issue at the end of the element;

That there was a breach of agreed pre-interview procedures: This is correct but applied to all candidates and was not unique to the Worker

That there was no organised pre-meeting with the Worker: This is correct but applied to all applicants and indeed it seems the Worker, by being office based while all other applicants were field based, had an “advantage “in the process in this respect as all other communications with candidates took place by phone

That the Workers Line management were not competent to assess the Worker due to their lack of knowledge of her specific database competency. This is subjective by the Worker and the ratings the Worker complained about related more to interpersonal skills than her work competency on the specialised database

That the Workers score was pre-prepared prior to meeting the Complainant. This is true but also applied to all other candidates and the Worker sought to influence this score with her Manager after she saw the score. Either way, the Interview Panel did not seem to take account of this submission for any candidate, so the score obtained by the Worker is a mute-point

That qualifications were not included for the first time in the assessment of Candidates. What an Interview Board chooses to consider is solely a matter for the Board providing it is fair and non-discriminatory. The selection competencies were agreed by Management and the Trade Union involved prior to the process commencing and while qualifications were excluded on this occasion the selection criteria used a normal interview selection method of competency assessment. Qualifications are not a competency and therefore were reasonably not included by the selection process. It would appear in this case that if qualifications were included it may have been discriminatory against other candidates and the Interview Board decided it was not relevant to the selection process. The Employer decided to make qualifications relevant at the hire stage but not at the promotion stage. This is entirely reasonable as to do otherwise would provide those more qualified but perhaps less effective/productive/suitable for promotion an unfair advantage on those applicants less qualified. Nothing in this comment should be taken as referring to the Worker concerned but is a more general statement.

I have considered this case in detail and there were three possible outcomes open to me. The first was to find in favour of the Worker based on the alleged breaches of process and her view that the Interview Board did not adequately consider her competencies/qualifications. However. wherever a promotion decision to a Panel is disputed there are always two parties to consider; firstly, the Person who is making the claim they deserve to be placed higher on the Panel and secondly the “rights” of those employees appointed from the Interview process or placed higher than the aggrieved party. In this case the Worker. Those employees played no role in this adjudication process and had no opportunity to put their view of the fairness or not of the selection process.  For an Adjudicator to consider recommending a person be moved up a place(s) on an Appointment Panel obviously means that another person must move down the Panel. To recommend such a course of action there must be such a clear, deliberate and obvious discriminatory action by an Interview Panel against one Individual that to suggest a change in the change in the outcome is so undeniably correct to any fair mined person and those candidates involved in the interview process. Also, those who may be affected have the right to be heard before any such decision could be made. Many of the breach of procedure issues presented by the Worker were not unique to her and equally the point about the score is not relevant as it was not considered by the Interview Panel. The Selection criteria were agreed with the Trade Union in advance and did not involve qualifications. The claim by the Worker does not meet the high bar required to make the this first type of Recommendation as set out above.

The second Recommendation considered was to recommend compensation, on a red circled basis, to the Worker involved for the breach of process which was accepted by both parties to have occurred.  However, as all candidates were treated in the same manner (generally) by Line Management and the breach in the process happened to all equally and without favouritism to any candidate, the conclusion must be that the Worker was not in any way disadvantaged by this breach. Indeed, in is a fact that the Worker did not mention this breach in advance of the Interview but seems to then place a high emphasis on the breach after she received the outcome of the Interview process. As to the Workers suggestion that the Interview Board did not take enough account of her qualifications/specialised database knowledge this is solely a matter for the Interview Boards judgement and cannot be second guessed by a person not party to the detailed requirements of the promotional position. If all selection processes were a pure analysis of data driven information the selection could be completed by an algorithm. However, the Worker, maybe influenced by her data background, has missed the core point that Interview Panels do form subjective opinions of people, their competencies, their contributions and potential capability to perform the role they have applied for. This is a core reason why experienced people are members of Interview Panels to make such a subjective judgement in addition to the data/information contribution provided in advance. As an aside, I note that the pre-interview process in the Organisation seems to be a data completion exercise and does not form any part of the selection process. While not relevant to his case, I would suggest the Employer consider giving a certain percentage of marks to line management advance input, say 20% for example, that may make this pre-interview process more relevant to the selection process. With regard to the second option considered of red circled compensation for the Worker, the breaches affected all applicants probably equally so that is not a basis for compensation of one Individual. The inclusion or exclusion of qualifications or of certain skill sets and competencies are the sole decision for an Employers Interview Panel and the Adjudicator has no competence to interfere in the decision making of management in what it includes in its selection of candidates, unless it was an obvious discriminatory action. Indeed, as pointed out above the Worker tried to breach the pre-interview process herself by attempting to influence her Line Manager to change/upgrade her ratings. In summary, I see no grounds for recommending compensation for the Worker in this case,

The final Recommendation outcome open to me is to find in favour of the Employer. An Adjudicator in Industrial Relations cases is obliged to consider the claim itself on its merits but also must consider the wider implications of a Recommendation and what is best for the overall good industrial relations in the Employer. It is not appropriate to recommend movement of the Worker up in the Panel nor are there enough grounds established to merit a recommendation of compensation, even on a red circled basis. While the Workers database experience appears may be highly valuable and unique it does not, in itself, seems to have been a major differentiating factor to promote the Worker. It is not for the Adjudicator to second guess the reasons why the Interview Panel made these considerations. So, the only conclusion I can reasonably come to having considered all the submissions, which were both well presented, is to is to Recommend in favour of the Employer. I have taken the unusual step in this case to try and set out my logic of this Recommendation to ensure the Worker involved that I have considered all options open to me in this case thoroughly.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a Recommendation in relation to the dispute. I Recommend in favour of the Employer.

Promotion