ADJ-00027651

Complainant

Respondent

Parties

Norah  Jordan

Childrens Health Ireland At Crumlin

Representatives

Aine Curran, O'Mara Geraghty McCourt

Eoin Haverty,  IBEC

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-00035418-001

24/03/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and one witness for the respondent gave evidence to the hearing, both gave their evidence under affirmation.

The complainant submitted that that she was subjected to gender-based discrimination when she applied for a permanent position with the respondent organisation.

The complainant submitted that the role as advertised revolved around working with children and that she had the requisite experience and qualifications to be appointed to the role.

The complainant submitted that there were a number of irregularities with the process which support her contention of discrimination.  The complainant noted that there was only a short interview, of about 25 minutes, with vignette questions, that there was no HR representative or external person on the board and the she was contacted the chair of the board first to inform her that she was unsuccessful rather than a member of HR.

The complainant submitted that she felt she was much better qualified than the successful candidate.  In addition, she submitted that she had to request a copy of the interview notes a number of times before receiving them.

The complainant submitted that the respondents lack of response to the statutory questionnaire raised an inference of discrimination.

The complainant submitted that the Interview scoring criteria did not correlate to the job specification and that there was considerable difficulty in extracting the relevant scores.  The respondent submitted that when she did receive the notes they didn’t not show how the decision was arrived at.

The respondent denied that there was any less favourable treatment towards the complainant or that there was any discrimination based on gender in relation to the interview process.  The respondent submitted that no prima facie case has been established.

The respondent submitted that the successful applicant had more paediatric experience than the complainant.

The respondent submitted that the recruitment process was conducted in accordance with its policy and was full transparent.  There was a gender balance on the interview board, which comprised two female board members and one male board member.

The respondent submitted that the complainant was informed of her result informally at an early stage and that this does not amount to discrimination.

Both parties cited the opening paragraph of the conclusions of the Labour Court in the case of Melbury v Valpeters (EDA9017):

Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. 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 speculation 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

Section 85A of the Employment Equality Acts 1998 – 2021 concerns the Burden of Proof and states that:

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination ’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provisionwhich, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 ( S.I. No. 337 of 2001 ), in so far as they relate to proceedings under this Act, are revoked.

The complainant gave her evidence in a cogent and credible fashion and provided an account of the recruitment and interview process.  She also outlined the follow-up process to the interview, noting the manner in which the result was communicated to her and the subsequent difficulties she had in accessing the notes of the interview.  The witness for the respondent was not present at the interview and was only able to provide an outline of the process, the policy and the events surrounding the recruitment competition.  She provided her evidence in a cogent and credible fashion too.

The facts established are as follows: the interview took place with a Interview Board of two females and one male, there were five candidates for interview – four female and one male, the successful candidate had different qualifications to the complainant, the successful candidate was male, there were no or no effective interview notes taken or kept, some of the candidates were informed of the outcome on an informal basis, there  was a delay in providing the complainant with any notes from the interview.

The complainant put forward the contention that the complainant’s qualifications were better than the successful candidate.  I do not consider that this has been established as fact but remains in the realm of assertion.  Although the issue of the interview notes is not, as was noted by the complainant, ‘best practice’ , I am not satisfied that this amounts to a fact from which discrimination may be inferred.

The respondent put forward an extract of the Labour Courts comments on the burden of proof in the case of Margetts v Graham Anthony & Company Limited (EDA038).  The full paragraph states as follows:

The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place. The appellant must, on the balance of probabilities, prove those facts from which such an inference may be drawn. When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show on the balance of probabilities that it did not discriminate against the appellant. The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.

The Labour Court in that case concluded as follows:

The Court is satisfied that the contentions advanced by the complainant to support her claim of discrimination are not sufficient in themselves to establish a prima facie case and therefore switch the burden of proof to the respondent. The Court is satisfied that no evidence was presented to substantiate the allegation that the company had treated the complainant less favourable due to her marital status, her family status or her age. Since the complainant has failed to establish a prima facie case of discrimination her claim must fail. It is not the responsibility of this Court to decide who was the most meritorious candidate for a position. The function of the Court is to determine whether the marital status, family status or the age of the complainant influenced the decision of the employer. The Court accepts that as the candidate with less experience coupled with the fact that (with the exception of a four-month period in 1999) she had not been in employment since 1998, of the three successful candidates selected, she was offered the shortest hours.

Having regard to the all the written and oral evidence presented in relation to this case, and in relation to the facts established by the complainant, I am satisfied that the contentions advanced by the complainant in support of her claim of discrimination are not sufficient in themselves to establish a prima facie case and to switch the burden of proof to the respondent.  Having regard to the foregoing, I find that complainant was not discriminated against.

Having regard to all the written and oral evidence adduced in relation to this complaint, my decision is that the complainant was not discriminated against.

Employment Equality, Gender discrimination, no prima facie case established