Complainant

Respondent

Parties

Rosemary  Lloyd

Irish Prison Service

Representatives

Frankie Watters, HR Consultant

Mairead McKenna BL instructed by Karen Duggan 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-00039010-001

03/08/2020

In December 2019, the Complainant applied for a promotional position, Chief Officer II (Prisoner Care/HR/Induction Training Manager) with the Respondent. Having been placed third behind two men on the selection panel following the conclusion of the interview process, the Complainant is alleging that she was discriminated against because the two male candidates did not have the required two years’ proven experience in supervising staff, as stipulated in the eligibility requirements for the role.

The Complainant commenced employment with the Respondent in 2005. After completing her training, she was assigned to the Dóchas Centre. In July 2010, she was promoted to the rank of Assistant Chief Officer (ACO) and assigned to Mountjoy Prison. The rank of ACO is a full time supervisory/management role. In that position, she worked as an ACO/Tutor HR/Mental Health & Wellbeing in the Irish Prison Service College.

In December 2019, she applied for a promotional position, Chief Officer II (Prisoner Care/HR/Induction Training Manager) in the Irish Prison Service College, Portlaoise and the subject matter of her complaint is the conduct and outcome of the selection process for that role.

Specifically, the eligibility requirements were as follows:

Ø  Applicants must have successfully completed their probation and have at least two years aggregate service in the Civil Service on 23rd December, 2019;

Ø  Have a 2018 PMDS rating of Satisfactory;

Ø  By 23rd December 2019, applicants must have at least three years’ operational experience in the Irish Prison Service and if applicable, have attained the HCCC. In this context operational experience refers to both prisoner contact and discipline;

Ø  Full Driving Licence;

Ø  Applicants have at least two years aggregate proven experience of supervising staff by the closing date of the competition.”

The Complainant alleged that she fulfilled all of these eligibility requirements at the time of her application.

She was the only female candidate shortlisted and was interviewed for the position along with four male candidates on 5th February 2020. By letter dated 11th February 2020, she was informed that she been placed number 3 on the competition panel.

She highlighted that two candidates ranked 1 and 2 were both male and was not satisfied with this. Initially she made an internal complaint to the Respondent wherein she stated that the two men placed above her on the panel did not meet one of the eligibility requirements, namely that they did not have the required two years’ proven experience in supervising staff.

The Complainant stated that during the internal formal complaint process, she asked a member of the Respondent’s HR team, who had contacted her to see if she wanted to proceed with the appeal, if the ‘proven experience’ eligibility requirement, stipulated in the eligibility requirements above, needs to be actually ‘proven’. She was informed that the interview panel would have gauged from the interviewee if the candidate had the proven experience. The Complainant however stated that she was not asked direct or indirect questions to establish that she fulfilled the requirement as to having at least two years aggregate proven experience of supervising staff. She also queried why the other specific eligibility requirements must ‘be proven’ before a person is placed on a panel, such as a full driving licence, but the criterion of ‘two years aggregate proven experience of supervising staff’ would only have to be proven during the interview.

Given that a favourable finding was not made on 25th February 2020 following her internal complaint, the Complainant appealed the outcome to the Office of the Commission for Public Service Appointments (CPSA) The role of the CPSA is to ensure that appointments to publicly funded positions are fair, transparent and merit-based.

Due in large part to the difficulties arising from the Covid 19 epidemic and the resulting public safety and health measures, a decision on this complaint, which was also unfavourable to the Complainant, did not issue until September 2020. It found that there was “no evidence to suggest that IPS acted outside of their pre- determined criteria. The panel were trained and best placed to determine the existence of the essential requirements for the role. In addition, as the two years supervisory experience was not confined to the organisation in question it would not be possible for candidates to have full knowledge of the experience of all candidates in the process. From our investigation of the relevant areas of the recruitment process, we cannot find any evidence of a breach of the Code of Practice”.

Given that the Complainant continued to dispute the findings of the interview panel, she referred the matter to the WRC for adjudication.

The Respondent’s witnesses did not give any evidence at the hearing because it was asserted that a prima facie case had not been established.

The summary below represents a brief synopsis of the Respondent’s written submission:

The Respondent highlighted in the first instance that the the Complainant was one of four female candidates who applied for the position of Chief Officer II (Prisoner Care/HR/Induction Training Manager) and was the only female who was shortlisted for interview.

It was also stated that, contrary to the Complainant’s assertions, the two male candidates who were placed ahead of her in the selection process had the requisite two years supervisory experience stipulated in the eligibility requirements.

The Law

Discrimination

Discrimination in accordance with the Acts is set out in section 6 and states:

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 in subsection (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 of paragraph (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 to subsection (3) (in this Act referred to as “ the age ground”),

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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.”

Findings

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the Complainant to show that, based on the primary facts, she has been treated less favourably than the two men who were placed ahead of her on the panel because of her gender. 

The Respondent, referred to the explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

At the hearing of this complaint, the following emerged:

1.  From an initial cohort of applicants, 5 people, four men and one woman, the Complainant, were invited for interview. 

2.  The Complainant was deemed to be the third most suitable person for the role.

3. The Complainant asserted that, unlike her, the two male candidates did not have the required two years’ proven experience in supervising staff and did not therefore meet the stipulated eligibility requirements.

4.  The Complainant appealed the matter internally and also via the Office of the Commission for Public Service Appointments (CPSA)

As set out by the Labour Court in the Valpeters decision, cited above, to establish whether or not discrimination has occurred, I must find that, in respect of the outcome of the competition for the position of Chief Officer II (Prisoner Care/HR/Induction Training Manager, “there was evidence of some weight from which it could be concluded” that the Complainant was treated less favourably than the two male candidates who finished ahead of her because of her gender.

It is a fact, as highlighted above, that the Complainant was deemed to be suitable for the job, and that she could have been appointed if both candidates placed higher than her had not accepted the offer.  To succeed in a complaint of discrimination therefore, the complainant must show that the two people placed first and second on the panel were less suitable than her. Specifically, she asserts that, unlike her, they did not have the required two years’ proven experience in supervising staff, did not therefore meet the eligibility requirements and should not have even have been shortlisted for the position, let alone be placed above her.

In considering the Complainant’s suggestion that the two male candidates placed ahead of her did not have the required two years’ proven experience in supervising staff, I note that no direct evidence was presented to support this suggestion. As highlighted in the seminal and oft quoted Valpeters decision, cited above, however,

“the Complainant must first establish facts from which discrimination may be inferred.” 

and that such facts must

“be of sufficient significance to raise a presumption of discrimination. 

Crucially, it also highlights that these

“must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. 

In the instant case however, given that the Complainant is only making assertions (my emphasis), that the two male candidates placed ahead of her did not have the required two years’ proven experience in supervising staff and that these assertions are unsupported by evidence (my emphasis), I cannot find that she has established a prima facie case.

Given that the Complainant has not established a prima facie case, I find that she was not discriminated against.

Discrimination on gender grounds; interview; eligibility requirements