ADJUDICATION OFFICER DECISION.

Adjudication Reference: ADJ-00028686

Parties:

	Complainant	Respondent
Parties	Tara McManus	Garda Representative Association

Representatives

Ms Kiwana Ennis BL instructed by Ms Áine Breathnach, IHREC.

Mr James Kane BL instructed by Ms Elizabeth Hughes , Hughes Murphy Solicitors.

Complaint(s):

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-00038572-001	07/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00047792-001	21/12/2021

Date of Adjudication Hearing: 24/03/2022

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The Complainant is a member of An Garda Siochana since February 2000, lodged a claim on 7th July 2020 with the Workplace Relations Commission (“WRC”) under the Employment Equality Acts 1998 to 2015 (“the EEA”) against the Garda Representative Association (“the Respondent”) wherein the Complainant claimed she had been unlawfully discriminated against on the basis of her gender in respect to her application for the position of Assistant to the General Secretary of the Respondent.

A second claim was lodged by the Complainant on 21st December 2021 wherein she claimed she was subjected to a further incident of discrimination regarding a second application she had made for the same position and subjected to victimisation as a consequence of her lodging the above-referred claim.

Summary of Complainant’s Case:

INTRODUCTION

The Complainant

The Complainant has been a member of An Garda Síochána since February 2000. She has held several positions since that time including one for three years in the Garda Press and Public Relations Office and is currently assigned as Garda Instructor, Continuous Professional Development Office, at Drumad Garda Station.

Whilst working as a garda, the Complainant earned a degree in Policing Studies from the Garda College, a diploma and (Hons) degree in Education and Training from Dublin City University and an (Hons) Masters in Education/Training and Leadership also from Dublin City University.

The Respondent

The Respondent is the professional representative organisation for members of An Garda Síochána of garda rank and deals with all matters affecting the welfare and efficiency of members including matters of pay, pensions and conditions of employment. It was established by the Garda Síochána (Association) Regulations 1978 (S.I 135/1978) which regulations were made pursuant to s.13 of the Garda Síochána Act 1924. These regulations have been amended several times including significantly by the Garda Síochána (Associations) (Amendment) Regulations 1998 (S.I. No. 63 of 1998).

The Respondent is constituted as follows:

· Annual or Special Delegate Conferences

· The Central Executive Committee

· Divisional Committees

· District Committees

The Respondent is therefore organised at district, divisional and national levels. It is funded by subscriptions made by members at the rate of 0.6% of basic salary.

The Respondent conducts its affairs in accordance with its Constitution and Rules (“the Rules”).

The primary policy making body of the Respondent is the Annual Delegate Conference which consists of the members of each Divisional Committee including the members of the Central Executive Committee. Governing of the Respondent between meetings of the Annual Delegate Conference is carried out by the Central Executive Committee (“the CEC”). The CEC comprises the President, Vice President, Treasurer and one elected member from each of the 31 Divisional Committees. The 31 current members of the CEC are made up of 29 male and 2 female members. This amounts to 6.5% female representation whereas the female membership of An Garda Síochána is approximately 27%. In respect to matters decided by the CEC by way of vote, the 10 CEC members who represent the larger Divisional Committees have two votes. Therefore, although there are 31 members of the CEC, there are a total of 41 available votes on matters not decided upon by consensus. Both female members of the CEC have two votes based on the Divisional Committee which they represent.

The secretariat of the Respondent comprises a General Secretary, Deputy General Secretary and Assistant to the General Secretary all of whom are employed by the Respondent on a full-time basis. Regarding the selection of members of the secretariat, the Rule 75 of the Rules provides as follows:

“Where a vacancy arises in the office of General Secretary or in the office of Deputy General Secretary, or in the office of Assistant to the General Secretary, the Central Executive Committee shall cause an interview board to be established, comprising members of the Central Executive Committee and a person or persons nominated by such outside bodies as may be designated by the Central Executive Committee. The interview board as so constituted shall interview candidates who may have been shortlisted for consideration for the vacant office. The interview board shall then propose one person and one person only to the Central Executive Committee. Before being appointed to office the person proposed will require to receive the endorsement of two thirds of the votes cast by the members of the Central Executive Committee and the appointment will require to be further ratified by the Annual Delegate Conference or a Special Delegate Conference.”

Based on the above therefore, to be appointed to a position on the secretariat, after being selected by an interview board, the nominated person must obtain two thirds approval of CEC members and by approved by the Annual Delegate Conference.

No female member has been appointed to a leadership role of the Respondent as either an officer or a member of association staff.

Assistant to the General Secretary Position

The Complainant applied to the Respondent for the advertised position of Assistant to the General Secretary. According to the advertisement this position attracted a “competitive remuneration and benefits package.” The salary is based on the mid-point of the Superintendent Grade.

On 12th July 2018, the CEC formed an interview board to deal with the appointment process comprising three CEC members: On 13th September 2019 the interview board selected a Specialist Recruitment company to conduct the recruitment process. This was the first time that a recruitment process had been conducted by an external agency. The interview process involved two interviews and a psychometric test. Out of six applicants (including the Complainant), four passed the initial screening process and by way of unanimous decision of the Interview Board, the Complainant was selected as the most suitable candidate. In accordance with the Rules, the next step was the ratification process by the CEC which required a two third’s majority vote after which the Rules provide for further ratification by the Annual Delegate Conference.

The CEC ratification vote took place on 13th February 2020. The Complainant was not present at this meeting. Both the recruitment company and the members of the interview board were present and made a presentation in respect to the Complainant. The interview board recommended the ratification of the Complainant.

The ballot paper submitted to the CEC membersstated:

“Motion from the Interview Board to fill the vacancy for the position of Assistant to General Secretary:

That the Central Executive Committee endorse the recommendation of the Interview board for the position of Assistant to the General Secretary, where the interview board recommend that Tara McManus fill the position of Assistant to General Secretary.”

The Complainant’s name therefore appeared on the ballot paper.

The CEC ratification vote, done by way of secret ballot, was 22 votes in favour of the Complainant and 19 against. This did not meet the two thirds majority required and as a consequence the Complainant was not appointed to the position of Assistant to the General Secretary. There is no obligation on the CEC members to give any reason for voting in a particular way. Notably, two members of the CEC – namely the President of the Respondent and the Chairperson of the CEC– had unsuccessfully applied for the Assistant to the General Secretary position being voted upon yet were present for the vote on the ratification of the Complainant to the position. The redacted minutes of the 13th February 2020 CEC meeting record that nobody present made a declaration of conflict of interest.

The Complainant was informed over the telephone by the Recruitment company that she had been unsuccessful.

In a letter to then General Secretary dated 8th July 2020 a member of the interview board referred to the process followed in respect to the selection of the Complainant for the role and the subsequent ratification process. He also stated that when he informed the members within his division about the outcome of the ratification vote, they expressed “extreme anger and frustration” with the CEC, and he further stated that at a later meeting on 2nd March 2020 the following motion had been proposed: “All future votes/ballots taken at the Central Executive Committee be held by open and transparent vote.”

The Assistant to the General Secretary role was filled on an interim basis at a subsequent meeting of the CEC on 12th March 2020. The Complainant was nominated and seconded by two members of the CEC. However, the Complainant was again unsuccessful and a male member, (who was not even a candidate for the role) was elected on the interim basis. This individual had previously been unsuccessful in his application for the Deputy General Secretary position. An issue arose at the meeting whereby there was a challenge on whether he was permitted to nominate a non-CEC member (i.e., the Complainant) to fill the role on an interim basis in respect to which he was required to point out that there was nothing in the Rules to preclude it. The same individual further raised the issue of addressing the gender balance and made the point that the Complainant had been successful in the competition for the position. On the other hand, regarding the interim appointee’s nomination, there did not appear to be any reasons furnished or required. The vote here was 31 votes in favour of the interim appointee to only five for the Complainant.

A second competition for the Assistant to the General Secretary position took place in October 2021. The Complainant was again selected unanimously by the interview board made up of CEC members and an external recruitment agency. Her ratification again went before the CEC on 11th November 2021. At this meeting the fact that the Complainant had lodged a claim with the WRC on 21st July 2020 (i.e., the first claim herein) was raised requiring the interim General Secretary to explain the definition of victimisation. Notwithstanding his having done so, prior to the vote, the fact of the Complainant’s case was referred to by certain members of the CEC. The vote was done by secret ballot and again the Complainant failed to achieve the two thirds majority as out of the 35 votes cast, 22 were in her favour and 13 against giving the Complainant 62.8% of the vote instead of the requisite 66.6%. The Complainant was contacted by the Recruitment company on the evening of 11th November 2021 to inform her that she had been unsuccessful in the ratification process.

On 17th November 2021, a member of the CEC put forward a motion, which was seconded, proposing that for the year 2021, Rule 75 (by which appointments to the secretariat required to be ratified by the CEC by a two third’s vote) in respect to the appointment of Assistant to the General Secretary be set aside and that the successful candidate selected by the Interview Board – which was set up for the purposes of identifying a suitable person for the role – be appointed (i.e. the Complainant). This motion was vigorously opposed by several CEC members and was not put to a vote.

An issue then arose regarding the legitimacy of the secret ballot nature of the vote on 11th November 2021 on the basis that this was contrary to a CEC unanimous decision made in January 2021 whereby future CEC votes were to be in public, but which decision had not been implemented by way of amendment to the standing orders.

Therefore, on the basis of legal advice, the vote was retaken on 23rd November 2021 in a private room during the Annual Delegate Conference. This was an open vote done by way of a show of hands. Prior to the vote, certain CEC members objected to a public vote. Moreover, there was again discussion about the Complainant’s case before the WRC and one member of the CEC, in fact stated:

“This is a shitshow. We have to move forward. This vote will bury this Association. I voted on the sole reason she’s suing the Association…and you can tell her that.”

On this occasion, out of the 41 votes cast, 23 were in favour of the Complainant, 16 against and 2 abstained. The Complainant only achieved 56% of the vote. As this was a public vote, there is a record of the manner in which the CEC members voted. (Details of voting included in submission).

The record shows that the two members who had unsuccessfully applied for the Assistant to the General Secretary role during the first competition voted against the Complainant. Further, one member of the CEC also voted against the Complainant notwithstanding she had been a member of the Interview Board that unanimously proposed the Complainant for the role.

The appointment to the position of Assistant to the General Secretary would be a significant promotion for the Complainant but to date has been denied to her and this has been a profound source of disappointment and distress for the Complainant.

2017 Ampersand Report

Issues with the leadership of the Respondent have been raised for several years including criticism being raised regarding its lack of transparency, outdated approach and for being “a boys club.” A motion was passed at the 2016 Annual Delegate Conference requiring a review of the Respondent by an independent group. In this respect the “Ampersand Report” was produced in November 2017 which was distributed to each member together with a proposed new set of Rules.

In the report’s findings on the Leadership by the CEC under the heading “The ‘old boys club’/closed shop” it is stated:

“Examples given in the consultations, included national roles observed as being ‘shared around’ or in the case of sub-committees, shared out among the ‘top table’ and without reference to competence or effectiveness; complaints from members about the body or about individual CEC members not being taken seriously; and forms of gate-keeping or favouritism observed and experienced with the effect of keeping positions and opportunities within a small circle.

There were perceptions expressed at many of the Division and District Search Conferences, of ‘a club within a club’ where some internal loyalties determine ‘who gets what’ in terms of national sub-committee membership. Talent was observed as less important than loyalty to those in power, or time-serving, in the breaking into the upper echelons of the Association.”

In respect to the lack of diversity in the CEC the report stated:

“The ‘boys club’ metaphor reflects the reality of the 30: 1 ratio of male to female membership of the CEC when the Association’s membership is 27% female. This was widely expressed as unacceptable across the Search Conference process. The fact that no action has been taken already to address the issues that contribute to this, is unusual in our experience in a representative body. In most, the debate, together with decisions on various models of action, has been happening in a serious way for about three decades. While the increase of women members of the Association has only accelerated over the last 20 years, it is coming to this issue late.

Drawing on the whole pool of talent in any organisation is a taken for granted principle, at if women are not expressing interest in participating in the Association, then this will have to be addressed.”

The Ampersand Report unequivocally found the Rules were “no longer fit for purpose” and recommended the adoption of a proposed new set of rules. It would seem however that only certain recommendations were implemented (despite the Report noting that the recommendations were designed as an “integrated package” and should not be “cherry-picked” and that the existing Rules have been retained.

THE LAW

Discrimination in the Application Process

Section 6(1) of the Employment Equality Acts 1998 to 2015 (the Employment Equality Acts) defines discrimination as follows: -

“…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,

(iv) is imputed to the person concerned.

(b) …”

Section 6(2) sets out the discriminatory grounds and the gender ground is contained at s.6(2(a).

Section 8(1) prohibits the discrimination of employees or prospective employees by the employer in relation to inter alia access to employment (s.8(1)(a)) and promotion (s.8(1)(d)).

Section 8(4) provides as follows:

“A person who is an employer shall not, in relation to employees or employment –

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.”

Sections 8(5) provides as follows:

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation access to employment if the employer discriminates against the employee or prospective employee –

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered

(b) ...

(c) …”

Section 8(8) deals with promotion as follows:

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds –

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.”

The provisions of section 8 are result directed and as a consequence there is no requirement on the Complainant to show that the act in question be done with an intention to discriminate.

It is noted that the case law from the former Equality Tribunal, the WRC and the Labour Court makes clear that when dealing with claims of discrimination regarding an interview or promotional process the function of the relevant adjudicative body is not to substitute its views on the relative merits of the candidates but to ensure that the selection process is not tainted by unlawful discrimination (Dublin Institute of Technology v. A Worker DEE994 and Meehan v. Leitrim County Council DEC- E2006-014).

In UCD v. Eleanor O’Higgins EDA131 ([2013] 24 ELR 146) (“O’Higgins”) the Labour Court (in a decision upheld on appeal on a point of law to the High Court) reviewed the case law and then set out a list of the legal principles to be applied in cases of alleged discrimination in the promotional process as follows:

1. It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination

2. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.

3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts

4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.

5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.

6. A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.

7. Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

8. The court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

As stated in O’Higgins at number (6) lack of transparency in the selection together with “an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.” At number (8) the Labour Court also noted that it was required to be alert to the possibility of unconscious or inadvertent discrimination and that mere denials of discriminatory motive in the absence of independent corroboration “must be approached with caution.” In dealing specifically with the issue of transparency in that case, the Labour Court stated the following:

“Another disturbing feature of this case is the absence of any minutes or other records of the deliberations of the UCAATP which show the basis upon which its decisions were taken. This is not in accord with best practice and accepted standards of transparency in the filling of promotional positions.”

In A Government Department v. An Employee EDA062 ([2006] 17 ELR 225), the Labour Court addressed the issue of the lack of transparency in the promotion process as follows:

“There is no exhaustive list of factors which can give rise to an inference of discrimination. However, in cases involving promotion, a lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can in themselves give rise to such an inference.”

The Labour Court went on to find that “the absence of any minute or record” of the promotional process, made it “impossible for the respondent to satisfy the court that the reasons for the complainant's exclusion from the impugned panel were wholly unrelated to his disability.”

In Fagan v. Revenue Commissioners DEC-E2008-004 the Equality Officer was again highly critical of the failure to adduce any documentation to support its decision- making process:

“The respondent has failed to furnish a single document to demonstrate how (i) the complainant's failure to be appointed to the acting-up post in February 2003 and (ii) the complainant's assessment and ultimately, his exclusion from the impugned Promotion Panel in August/September 2003, were wholly related to factors unconnected with his age. This dearth of records has previously been held by the Labour Court as ‘an insuperable difficulty’ [Department of Health and Children v. Gillen ADE153]and ‘impossible’ [A Government Department v. An Employee EDA062]for the respondent to discharge the onus of proof placed upon it.”

Another issue that requires examination in cases where it is alleged an appointment process was discriminatory is the composition of the selection board. In O’Higgins, the Labour Court stated the following:

“The gender composition of the UCAATP [selection committee] must also give rise to considerable disquiet. It is now universally accepted that an appropriate gender balance within selection boards is an essential prerequisite to the effective attainment of full equality of opportunities between men and women in employment. That is particularly so in professions and occupations in which women have traditionally been underrepresented. The constitution of a selection board comprising 12 men and one woman must be regarded as inherently inimical to the achievement of full gender equality in access to senior appointments within the Respondent University.”

In respect to the obligation on the WRC to disapply national provisions or laws that are contrary to EU law, this was confirmed by the Court of Justice of the European Union in Minister for Justice and Equality and Anor. V. Workplace Relations Commission C-378/17 when it stated as follows:

“50. It follows from the principle of primacy of EU law, as interpreted by the Court in the case-law referred to in paragraphs 35 to 38 of the present judgment, that bodies called upon, within the exercise of their respective powers, to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective, disapplying if need be any national provisions or national case-law that are contrary to EU law. This means that those bodies, in order to ensure that EU law is fully effective, must neither request nor await the prior setting aside of such a provision or such case-law by legislative or other constitutional means.

51. Consequently, the fact, highlighted by the referring court, that in the present instance national law permits individuals to bring an action before the High Court founded on the alleged incompatibility of a national provision with Directive 2000/78 and allows the High Court, if it upholds the action, to disapply the national provision at issue is not capable of calling the above conclusion into question.

53. In the light of the foregoing considerations, the answer to the question referred is that EU law, in particular the principle of primacy of EU law, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which a national body established by law in order to ensure enforcement of EU law in a particular area lacks jurisdiction to decide to disapply a rule of national law that is contrary to EU law.”

Victimisation

In respect to victimisation, s.74(2) of the EEA provides that victimisation “occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a) A complaint of discrimination made by the employee to the employer,

(b) Any proceedings by a complainant

(c) …

(d) …

(e) …

(f) An employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment

(g) …”

The case law confirms that to come within the definition of victimisation, the adverse treatment at issue must be in reaction to a protected act as per s.74(2) having been taken by a complainant (Barrett v. Department of Defence EDA1017).

It has been established that the protection provided at s.74(2) applies to both current and prospective employees (A Worker v. A Department Store DEC-E2002-17 and Maher v. CIE Medical Department and CIE DEC-E2010-46).

Victimisation has consistently been dealt with very seriously by the WRC, the Labour Court and the former equality officers, when found to have occurred as its negative and damaging effect on the exercising of rights pursuant to the equality legislation is well recognised.

In A Complainant v. A Department Store DEC-E2002-017, the equality officer stated as follows (at paragraph 4.13):

“I would like to emphasise here that victimisation is a matter that must be considered very seriously. To allow victimisation of complainants for making complaints under the Act would be to subvert the legislation. The purpose of section 74 (1) is to protect those who consider they have been the victims of discrimination. If this protection is not supported in Equality Officer decisions, the legislation will be ineffective, and the rights of the individuals involved will be compromised.”

The equality officer further stated that “significant compensation” should be awarded to successful complainants.

In Dublin City Council v. McCarthy EDA022 the Labour Court agreed with the view of the equality officer at first instance that “the victimisation of a person for having in good faith taken a claim under the Equality Legislation is very serious as it could have the impact of undermining the effectiveness of the legislation and is completely unacceptable.”

The Burden of Proof

Section 85A of the Acts provides that where a complainant in discrimination proceedings establishes facts from which it may be presumed that there has been discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

In O’Higgins, when addressing the issue of whether the complainant had established a prima facie case, the Labour Court stated that:

“While none of these considerations are determinative of the case [lack of rationality in the result, lack of transparency and composition of the selection board], their cumulative effect must be sufficient to constitute facts from which discrimination can be inferred. The Equality Officer found that the Complainant had failed to make out a prima facie case of discrimination. On the evidence adduced in the course of the appeal the Court must respectfully disagree with that conclusion.”

In assessing the defence advanced by a respondent once the burden of proof has shifted to it, the Labour Court in Dublin City University v. Horgan EDA0715 stated the following:

“When the burden of proof shifts to a Respondent there are a number of factors which should be taken into account in deciding if that burden has been discharged. Firstly, since the facts necessary to prove an explanation can only be in the possession of the Respondent, the Court should expect cogent evidence to discharge the burden of proof (see Barton v Investec Henderson Crosthwaite Securities [2003] IRLR 332 and the decision of the Court of Appeal for England and Wales in Wong v Igen Ltd and others IRLR 258).

Secondly, the requirement to establish that there was no discrimination whatsoever means that the Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution (see Nevins, Murphy, Flood v Portroe Stevedores [2005] 16 ELR 282).

Finally, in Wong v Igen Ltd and others Peter Gibson LJ considered the scope which should be ascribed to the notion of ‘no discrimination whatsoever’. He held that if the protected factor or characteristic is more than a ‘trivial influence’ in the impugned decision, a claim of discrimination will have been made out. That is a highly persuasive authority which the Court readily adopts.”

APPLICATION OF THE LAW TO THE FACTS

It is submitted that the appointment process pursued by the Respondent (as provided for in the Rules) is very evidently tainted by unlawful discrimination. In this respect the following points are made:

a) Notwithstanding that on two separate occasions the Complainant was unanimously selected for the position of Assistant to the General Secretary by the interview board after a competitive process run by an external recruitment company, she was denied the appointment. It is submitted that this occurred as a result of the Respondent following an outdated, wholly irrational, indefensible and discriminatory ratification process.

b) In particular there is the complete and utter lack of transparency in the ratification process. In this respect, firstly the vote was initially done by way of secret ballot and secondly at no time has there been any obligation on CEC members to give reasons for their decision to refuse to ratify the Complainant. As a consequence, there could be no discernible connection at all between the Complainant’s qualifications for the role and the result of the ratification process thereby giving rise to a fundamentally flawed process.

c) Moreover, the gender composition of the CEC which is made up of 6.5% female representation is extremely problematic and glaringly discriminatory. In O’Higgins the Labour Court noted that it was “now universally accepted” that an appropriate gender balance within selection boards was “an essential prerequisite to the effective attainment of full equality of opportunities between men and women in employment.” In that case it was held that a selection board comprising 12 men and one woman “must be regarded as inherently inimical to the achievement of full gender equality in access to senior appointments with the Respondent university.” Clearly the same criticism applies here.

d) Finally on this issue of the tainted appointment process, the fact that two male members of the CEC who had a clear conflict of interest – in that they had been unsuccessful candidates in the first competition for the position in question– were permitted to vote on the Complainant’s ratification only further undermines the integrity of the ratification process. Given the final vote on 23rd November 2021 was done by way of open vote, the record reflects that these two CEC members voted against the Complainant.

It is noted that there is no obligation on the Complainant to establish that the intention of the appointment process as provided for in the Rules was for the purposes to discriminate against female members. Rather, it is the effect of the process that is relevant. Further, it is sufficient for the Complainant to show that discrimination is within the range of presumptions that can be properly drawn from the facts. In this regard, the fact that no female garda has been appointed to a leadership role in the CEC as either an officer or a member of association staff is very revealing of a systemic gender issue. Significantly in this regard, the Complainant was even unsuccessful in being appointed to the role on an interim basis on 12th March 2020 when Dermot O’Brien succeeded in being appointed by a vote of 31 to five in circumstances where Mr. O’Brien had not even been a candidate for the position and certainly had not been selected for it by way of a competitive process.

In this case therefore that there is clear evidence of unfairness in the appointment process and of a manifest irrationality in the result warranting the WRC to take action.

It is submitted that based on the foregoing – in particular the cumulative effect of the issues in this case such as the irrational failure to ratify the Complainant after being selected as the successful candidate; the lack of transparency in the ratification process; the gender composition of the CEC; the blatant conflict of interest permitted in the voting process and the fact no female has ever held a role in the leadership – that the Complainant has established facts of sufficient significance from which discrimination can be inferred and therefore has clearly made out a prima facie case of gender discrimination.

It is submitted that in the circumstances of this case, the Respondent will not be in apposition to rebut this prima facie case of discrimination. In this regard, from the case law cited above, it is apparent that a non-transparent process creates a significant issue for a respondent in seeking to rebut a prima facie case.

In respect to examining any defence by the Respondent, the case law also requires the WRC to be alert to the possibility of unconscious or inadvertent discrimination and to approach with caution mere denials of discriminatory motive in the absence of independent corroboration. In this regard it is submitted that as per Fagan v. Revenue Commissioners the complete and utter lack of transparency “has previously been held by the Labour Court an ‘insuperable difficulty’ and ‘impossible’ for the respondent to discharge the onus of proof placed upon it” should apply here.

In so far as the Respondent attempts to rebut the claim by arguing that its actions were required in accordance with the Rules, and in particular Rule 75, it is submitted that the EEA clearly prohibits the use by an employer of any rule that results in discrimination on any of the protected grounds including gender. Further as per Minister for Justice and Equality and Anor. V. Workplace Relations Commission the WRC is obliged “to adopt all the measures necessary to ensure that EU law is fully effective, disapplying if need be, any national provisions or national case-law that are contrary to EU law.” Therefore, given the evident discriminatory effect of the Rules, they should unquestionably be disapplied. Further the Respondent should be ordered to appoint the Complainant to the role of Assistant to the General Secretary on the basis that, on two separate occasions, she has been the candidate unanimously selected for this role in a competitive process and the continuing refusal by the CEC to ratify her is simply unjustifiable.

Regarding the Complainant’s victimisation claim, at the secret ballot vote on 11th November 2021, the fact that the Complainant had lodged a claim against the Respondent was raised requiring the interim General Secretary to outline the definition of victimisation. At the retaking of this vote on 23rd November 2021 by way of an open vote, again the fact that the Complainant had made a complaint of discrimination was raised and on this occasion one CEC member openly declared that he was voting on the “sole reason” that the Complainant was suing the Respondent and the record shows that in fact he voted against the Complainant. This is therefore an unapologetic and explicit case of victimisation demonstrating an alarming and deliberate disregard for the law and for the Complainant’s entitlement to be protected from victimisation. Indeed, this is precisely the conduct the EEA is meant to prevent.

The 2017 Ampersand Report was commissioned in response to criticism of the leadership of the Respondent regarding its lack of transparency, outdated approach and for being “a boys club.” These criticisms were confirmed by the Report which was highly critical of the male to female ratio of the CEC membership and the fact that no action had been taken to address this issue. The Report noted that this had been an issue in most organisations for the last three decades and that the Respondent was “coming to this issue late.” It is manifestly clear therefore that without some external intervention, the Respondent will not change of its own accord.

CONCLUSION

It is submitted that based on the foregoing the Complainant should succeed in her claims herein.

The Complainant reserves the right to make further and other submissions including oral and/or written submissions on the facts and the law either at the hearing of the matter or subsequently thereto.

Summary of Respondent’s Case:

It is accepted that the Complainant applied for the position of Assistant to the Secretary General of the Respondent. It is accepted that on each of those occasions the Complainant was the sole candidate proposed by the interview board to the Respondent’s Central Executive Committee (the “CEC”) and that those decisions of the interview board were unanimous. It is accepted that the Complainant was not ratified for the position by the Respondent’s CEC on 13th February 2020 and 23rd November 2021.

The Respondent at all times followed the mandatory procedure set down in the Respondent’s Rules, and which are grounded in a statutory framework, for appointments to this position.

The Respondent cannot lawfully disregard the procedure set down in the Respondent’s Rules.

The procedure adopted by the Respondent must be viewed as a whole and the uncontroversial facts are utterly inconsistent with a claim for discrimination. Specific regard must be given to the following:

I. With respect to both applications, the Respondents empanelled an interview board comprising three members of the Respondent’s CEC and 3 external persons. On each occasion, the interview panel unanimously proposed the Complainant to the CEC for ratification. This is inconsistent with the claim that the Complainant was discriminated against by the Respondent since the interview boards which unanimously proposed the Complainant included members of the Respondent’s CEC.

II. The Complainant was proposed by the interview boards on each occasion over other male applicants. This is inconsistent with the claim for discrimination.

III. Having been proposed to the CEC, the Respondent balloted members of the CEC on 13th February 2020 and 23rd November 2021. The Complainant received the support of the majority of the CEC on each occasion (54% and 59% support respectively). This is, again, clearly inconsistent with a claim for discrimination as the Complainant enjoyed the support of the majority of the CEC.

IV. The reason why the Complainant could not proceed any further in the process on each occasion is that the Rules applicable to the selection and appointment process provide that a candidate must command a two thirds majority support of the CEC to proceed further. This “two thirds” requirement is the reason the Complainant could not progress further, despite receiving the support of a simple majority of the CEC on each occasion.

V. The two thirds rule is a neutral rule which applies irrespective of gender and which in the past has too yielded negative results for male candidates and male officer holders.

The within complaints may not be used as a vehicle to launch either a collateral attack on the procedures of the Respondent (which are grounded in statute) or an appeal against the decisions in question.

The WRC does not look behind a decision in relation to appointments unless there is “clear evidence of unfairness in the selection process or manifest irrationality in the result.” Neither are found in the present case; the Complainant went fared better than all other candidates. Nobody has been appointed to the position. The process requires a candidate (male or female) to garner the support of a two thirds majority of the CEC in order to proceed further.

The Complainant has failed to make out a prima facie case.

The Complainant could not have been subject to victimisation on 23rd November 2021 arising from her first complaint (i.e., her complaint as to the decision made on 13th February 2020) as the vote in November 2021 was more favourable in comparison to the 13th February 2020 decision. Her support within the Respondent’s CEC in fact grew.

The Respondent takes issue with the repeated and tendentious use by the Complainant in her forms and correspondence of the claim that she was “successful” and the “successful candidate.” The Complainant was not the successful candidate. No one was in fact appointed to the position on either occasion and it remains vacant. The Complainant was the sole candidate proposed by the interview board to the CEC at an inchoate stage of the process. Her success as a candidate was subject to two further ballots: a ballot by the CEC and later ratification by the Annual Delegate Conference.

Prior to considering in detail the bases on which the Respondent denies the within complaints, it is necessary to refer to the statutory framework which governs appointments to the position of Assistant to the Secretary General of the Respondent.

Statutory Framework.

The procedure for selecting and appointing a person to the role of Assistant to the Secretary General is contained within a statutory framework.

The Respondent has no power to depart from the procedure set down within this statutory framework.

Regulation 18 of the Garda Síochána (Associations) (Amendment) Regulations, 1998 (S.I. 63/1998) provides in material part:

“(1) The Assistant General Secretary (to be known by such title as is laid down from time to time by Annual Delegate Conference or Special Delegate Conference) shall be a member of the [Garda Representative] Association and shall be appointed by the Central Executive Committee in accordance with procedures laid down by the Annual Delegate Conference.

(2) The appointment as Assistant General Secretary and the conditions attaching thereto shall be ratified by the next Annual Delegate Conference or Special Delegate Conference held following the appointment.”

Section 13(1) of the Garda Síochána Act 1924 (as amended) provides:

“For the purpose of representing members of the Garda Síochána in all matters affecting their welfare and efficiency, there may be established, in accordance with regulations to be made under the Garda Síochána Acts, 1923 to 1977, an association or associations for all or any one or more of the ranks of the Garda Síochána below the rank of Sergeant”.

Pursuant to section 13 of the Garda Síochána Act 1924 (as amended), the Garda Síochána (Associations) Regulations, 1978 (SI 135/1978) provide at Regulation 4(1):

“An association to be known as the Garda Representative Association is hereby established for the purpose of representing members of the Garda Síochána holding the rank of Garda in all matters affecting their welfare and efficiency.”

Later, it is provided at Regulation 6 that:

“Subject to the provisions of these Regulations, the Associations established pursuant to Regulations 4 and 5 of these Regulations may conduct their own affairs in accordance with a Constitution or Rules made by the Associations.”

The Respondent has promulgated and adopted a Constitution & Rules (the “Rules”). The latest version is dated May 2019, and this is the version which applied to the two applications which are the subject of the within proceedings.

At Rule 75 of the Rules, it is provided, under the heading “Selection and Appointment of General Secretary, Deputy General Secretary and Assistant to the General Secretary,” that:

“Where a vacancy arises in the office of General Secretary or in the office of Deputy General Secretary, or in the office of Assistant to the General Secretary, the Central Executive Committee shall cause an interview board to be established, comprising members of the Central Executive Committee and a person or persons nominated by such outside bodies as may be designated by the Central Executive Committee. The interview board as so constituted shall interview candidates who may have been shortlisted for consideration for the vacant office. The interview board shall then propose one person and one person only to the Central Executive Committee. Before being appointed to office the person proposed will require to receive the endorsement of two-thirds of the votes cast by members of the Central Executive Committee and the appointment will require to be further ratified by the Annual Delegate Conference or a Special Delegate Conference.”

Mandatory procedure followed

The Respondent cannot be found to have acted discriminatorily in circumstances where it followed the foregoing mandatory procedure.

The position was advertised in November 2019. An interview board was empanelled by the Respondent consisting of 3 members of the Respondent’s CEC and 3 members of an outside recruitment firm.

Following interviews and assessment of candidates, the interview board, acting in accordance with the procedure set out above, proposed the Complainant to the CEC.

The Respondent, acting consistent with the said procedure, balloted the membership of the CEC on 13th February 2020 for the purpose of deciding on the proposal to ratify the Complainant.

The result of the vote was For: 22; Against: 19. (This equates to 54% of the votes cast, in the Complainant’s favour).

Despite the fact that the Complainant obtained the support of a simple majority of the CEC, the Complainant’s candidature could not be progressed further for the sole reason that she did not obtain the required two thirds majority set out in the procedure described earlier.

Had the Complainant obtained the support of a two thirds majority of the CEC, she would have been ratified by CEC and appointed to the role subject to final ratification by the Annual Delegate Conference or a Special Delegate Conference, as per the Rules referred to above.

In relation to the second complaint made by the Complainant, the position was advertised again in August 2021.

An interview board was empanelled comprising: 3 members of the CEC and two employees of a professional recruitment company.

The Complainant was proposed to the CEC by the interview board, consistent with the procedure set out above.

A vote was taken by the CEC on 11th November 2021. However, owing to a resolution passed in January 2021, the vote taken on 11th November 2021 should have been by way of public ballot. Accordingly, the results of the ballot on 11th November 2021 were of no effect and a ballot was retaken on 23rd November 2021.

The result of the ballot on 23rd November 2021 (which was the only valid ballot taken in November 2021) was: For 23; Against: 16; Abstain: 2. (This equates to 59% of the votes cast, in favour of ratifying the Complainant).

Once more, the Complainant could not be ratified as she did not receive a two thirds majority of the CEC, despite receiving the support of a simple majority on each occasion.

The Respondent is obliged under statute, statutory instrument and its Constitution and Rules to follow the procedure set out above. The Respondent followed the procedure as aforesaid and, in those circumstances, cannot be found liable for discrimination for following a binding, mandatory procedure.

Respondent cannot depart from its procedure

The Respondent had no power to do anything further on 13th February 2020 and 23rd November 2021.

Upon being furnished with the interview board’s proposal on both occasions, the Respondent facilitated a ballot of the membership of its CEC.

On both occasions, despite a simple majority voting in favour of the Complainant, the two thirds rule set out in Rule 75 above meant that the Complainant could not proceed to be ratified by the Annual Conference and therefore could not be appointed to the post.

The Respondent is in a legal straight jacket as far as the process for selecting the Assistant Secretary General is concerned. The Respondent has no discretion to appoint the Complainant in light of the results of the ballots. The Respondent cannot under any circumstances lawfully draw a red line through Rule 75, irrespective of the gender of the candidate or his or her qualification for the role.

The requirement to secure a two thirds majority applies to all candidates proposed by the interview board.

Procedure as a whole and facts are inconsistent with discrimination

The procedure adopted by the Respondent must be viewed as a whole and the uncontroversial facts are utterly inconsistent with a claim for discrimination. The WRC must not take a microscope out to an isolated aspect of the process (i.e., the two votes of the CEC on 13th February 2020 and 23rd November 2021) divorced from a consideration of the entire process.

With respect to both applications made by the Complainant for the position, the Respondents empanelled an interview board on each occasion comprising three members of the CEC and 3 external persons, as referred to above.

As noted above, the interview boards unanimously proposed the Complainant to the CEC in both February 2020 and November 2021. This is inconsistent with the claim that the Complainant was discriminated against by the Respondent as it demonstrates that all members of the Respondent who formed part of the interview board voted to propose the Complainant on both occasions.

In fact, given that the Complainant was the sole candidate proposed by the interview board to the CEC on both occasions, the Complainant in fact fared better, and went further, than any other candidate for the position, including all male candidates. Again, this is inconsistent with the claim that the Complainant was discriminated by the Respondent as she in fact got further than all male candidates.

On 13th February 2020 and 23rd November 2021, the Complainant received the support of a simple majority of the Respondent’s CEC.1 It is utterly impossible in those circumstances to assert that the Complainant was subject to discrimination by the Respondent; the majority of the CEC in fact supported her ratification.

But for Rule 75 (which the Respondent cannot disapply and which applies to candidates irrespective of their gender), the Complainant would have been ratified by the CEC and appointed to the position, subject to final ratification by the Annual or Special Delegate Conference. On both occasions, the sole reason why the Complainant could not proceed any further in the process is that the Rules applicable to the appointment process provide that a candidate must command a two thirds majority support of the CEC to proceed further. This two thirds requirement is the reason the Complainant was unsuccessful, despite receiving the support of a simple majority of the CEC on each occasion.

Thus, neither the CEC nor the Respondent were discriminating against the Complainant; the Complainant was unsuccessful consequent on the two thirds rule set out in Rule 75.

The two thirds rule is a neutral rule which applies irrespective of gender and which in the past has too yielded negative results for male candidates and officer holders.

The procedures provide for the assessment of male and female candidates on their merits, with the assistance of an external agency, and subject thereafter to ratification by a two thirds majority of the CEC and ratification at the Annual Delegate Conference.

The procedures set out above contain no preference for male or female candidates and were applied meticulously by the Respondent.

The above uncontroversial facts are absolutely incompatible with any claim for discrimination; there is no basis whatsoever for asserting that discrimination took place.

Collateral attack on procedure impermissible

Just as the Respondent is bound by the Rules, the Complainant, who entered the process on both occasions in full knowledge of the procedure, is not entitled to ask the WRC to tackle or dismantle the statutory scheme governing the appointment of the Assistance to the Secretary General or any of the Rules made thereunder.

The Complainant is not entitled to use the within complaints as a vehicle for appealing the decision of the CEC.

No manifest unfairness or irrationality

In O’Higgins v UCD the Labour Court stated that:

“The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.”

There is no evidence, much less “clear evidence,” of unfairness or manifest irrationality in the present case.

As noted earlier, both male and female candidates applied for the position on both occasions and the Complainant in fact fared better than all other candidates, including male candidates.

As also noted, the decision to propose the Complainant was made on both occasions by unanimous vote of the interview board and the interview board on each occasion contained three members of the CEC of the Respondent. No one was appointed to the role on either occasion. The Complainant came closer than any other candidate. The position remains vacant.

There is no “manifest irrationality” in the present case. The Complainant was proposed and obtained the support of a simple majority. The Complainant’s candidature was subject to clearing a high threshold of two thirds majority of the CEC, which applies equally to male and female candidates. The application by the CEC of the high threshold of two thirds majority set out in Rule 75 is not irrational or unfair.

Failure to establish prima facie case

In light of the foregoing, the Complainant failed to establish a prima facie case of discrimination.

The principles applicable in assessing whether a prima facie case is established have been set out in a number of cases by the Labour Court and WRC.

In Melbury Developments v Arturs Valpetersthe Labour Court stated:

“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.

In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.”

In the present case, there is simply no evidence of weight which would allow the WRC to conclude that a male would be successful in appointment to the position. Just as in Melbury the claim here is based on a mere assertion by the Complainant.

In Southern Health Board v Dr Teresa Mitchell,the Court found that the claimant must:

“… establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.”

In Brennan v St. Michaels House, the Equality Officer stated as follows:

“In any dispute concerning discrimination contrary to the terms of the Employment Equality Act, 1997, the Equality Officer expects that the person making the allegation should have prima facie evidence for his or her allegation and consider it reasonable to dismiss as without proper foundation any allegation for which no such evidence is presented. On the other hand, where such evidence has been presented, the onus falls on the employer concerned to give a convincing alternative explanation for his actions. Where the employer concerned fails to do so, the Equality Officer considers it is equally reasonable to find in favour of the claimant. ‘Prima facie’ evidence means evidence which in the absence of any convincing contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has occurred…”

In the present case, it cannot be said that the facts are of “sufficient significance” to presume discrimination, nor can it be said that “any reasonable person would conclude that discrimination has occurred.” In fact, the evidence is clearly to the contrary.

The Respondent did not prefer any male candidates. In fact, and as noted above, the Complainant fared better than male candidates on both occasions. Thus, there is no possibility that prima facie evidence of direct discrimination can be found. Similarly, with respect to the question of indirect discrimination, the two thirds rule in Rule 75 does not apply to the “particular disadvantage” of female candidates.7 In fact, earlier on 13th February 2020 (i.e., the very same day as the Complainant’s first complaint) the General Secretary of the Respondent failed to receive a two thirds majority of the CEC and his continuation in office was not confirmed. Moreover, in April 2017, a male was rejected for the position of Deputy Secretary General by reference to the same two thirds rule.

If it is found that the Complainant has established a prima facie case for discrimination (which is forcefully denied), the Respondent relies on the foregoing to establish that there was in fact no discrimination at any time.

Victimisation

For all of the reasons set out above concerning the absence of discrimination, it is also denied that victimisation occurred in November 2021, or at all.

The fact that the Complainant received the support of a simple majority of the Respondent’s CEC in November 2021 is incompatible with a claim of victimisation.

Moreover, the level of support obtained by the Complainant in fact increased from about 54% of the votes cast (in February 2020) to 59% (in November 2021). This is inconsistent with victimisation as CEC’s support for her candidature grew since the complaint was made to the WRC.

The process set out above was applied and the Complainant in fact, much less than suffering victimisation, applied for the position again, was proposed on a unanimous basis by the interview board to go before the CEC as the sole proposed candidate and was ultimately unsuccessful owing to the requirement to secure a two thirds majority of support set out in Rule 75.

The Respondent applied the procedure in November 2021 with equal rigour in comparison to February 2020

The Complainant was not treated adversely or unfavourably and remains in the same position as she was prior to initiating the first WRC complaint.

Conclusion

For the foregoing reasons, the Complainant is not entitled to any reliefs.

Findings and Conclusions:

Complaint CA – 00038572 – 001.

The Complainant lodged a claim on 7th July 2020 with the Workplace Relations Commission under the Employment Equality Acts 1998 to 2015 (“the EEA”) against the Garda Representative Association (“the Respondent”) wherein the Complainant claimed she had been unlawfully discriminated against on the basis of her gender in respect to her application for the position of Assistant to the General Secretary of the Respondent.

A second claim (CA – 00047792 – 001) was lodged by the Complainant on 21st December 2021 wherein she claimed she was subjected to a further incident of discrimination regarding a second application she had made for the same position and subjected to victimisation as a consequence of her lodging the above-referred claim.

TheComplainantappliedtotheRespondentfortheadvertised positionofAssistanttotheGeneralSecretary.

On 12th July 2019, the CEC formed an interview board to deal with the appointment process comprising three CEC members. On 13th September 2019 the interview board selected a specialist recruitment company to conduct the recruitment process. This was the first time that a recruitment process had been conducted by an external agency. The interview process involved two interviews and a psychometric test. Out of six applicants (including the Complainant), four passed the initial screening process and by way of unanimous decision of the Interview Board, the Complainant was selected as the most suitable candidate. In accordance with the Rules, the next step was the ratification process by the CEC which required a two third’s majority vote after which the Rules provide for further ratification by the Annual Delegate Conference.

The CEC ratification vote took place on 13th February 2020. The Complainant was not present at this meeting. Both the external recruitment company and the members of the interview board were present and made a presentation in respect to the Complainant. The interview board recommended the ratification of the Complainant.

I note that the Complainant was, by far, the most suitable candidate for the position.

The Complainant’s representative has noted that two members of the CEC who had unsuccessfully applied for the position of Assistant to the General Secretary were permitted to vote. This raises the question of a potential conflict of interest. Were these two members of the CEC eligible to vote and should they have declared a potential conflict of interest?

Equality law is based on comparison; how one person is treated by comparison to another who does not possess the relevant characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator. A comparator must be employed by the same employer as the complainant or by an associated employer.

A comparator is an evidential tool. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristic relied upon.

In the instant case the complainant has not named a comparator.

Section 85A (1) of the Employment Equality Act 1998 reads as follows:

(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.

The Respondent highlights the Labour Court decision In Melbury Developments v Arturs Valpeters in which the Court has stated:

In the instant case one cannot conclude that the CEC voted as it did due to the Complainant’s gender. It is for this reason that I must now decide that the complainant as presented is not well founded.

Complaint CA – 0047792 – 002.

A second competition for the Assistant General Secretary position took place in October 2021. The Complainant was again selected unanimously by the interview board. Having studied the scoring achieved by each candidate I note that the Complainant was by far the most suitable candidate. At a meeting of the CEC on November 11th, 2021, to ratify her appointment the fact that she had lodged a complaint to the WRC in relation to her first application was raised. The Complainant was not appointed to the position.

The Representative of the Complainant has highlighted the comments made by one member of the Central Executive Committee prior to the second vote arranged to ratify the appointment of the Complainant to the position of Assistant to the General Secretary. I note that one member of the CEC had put forward a motion that Rule 75 (by which appointments to the secretariat required to be ratified by the CEC by two thirds vote) be set aside and that the successful candidate selected by the Interview Board be appointed. This motion was vigorously opposed by several CEC members and was not put to a vote. An issue then arose regarding the legitimacy of the secret ballot nature of the vote on 11th November 2021 on the basis that this was contrary to a CEC unanimous decision made in January 2021 whereby future CEC votes were to be in public but which decision had not been implemented by way of amendment to the standing orders.

The vote was retaken on 23rd November 2021 in a private room during the Annual Delegate Conference. This was an open vote done by way of a show of hands. Prior to the vote, certain CEC members objected to a public vote and there was again discussion about the Complainant’s case before the WRC which culminated in one member of the CEC declaring:

“This is a shitshow. We have to move forward. This vote will bury this Association. I voted on the sole reason she’s suing the Association…… and you can tell her that.”

Victimisation.

Victimisation is defined in broad terms under the Employment Equality Acts. Section 74(2) provides:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a) A complaint of discrimination made by the employee to the employer,

(b) Any proceedings by a complainant

(c) …

(d) …

(e) …

(f) An employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment

(g) …”

The protection of s.74 applies also to former employees and job applicants or prospective employees.

Victimisation, as a standalone cause of action, protects employees from fear of retaliatory conduct on the part of their employer for them relying on discrimination law or raising complaints of discrimination with their employer. It is an important form of protection as it has been shown that it is relatively common for employees who raise discrimination issues in the workplace to be subjected to a hostile working environment or deterioration in working conditions, either from management or from colleagues. The reality of the workplace is such that retaliatory action may be taken by employees who are accused of discriminatory treatment. These actions, whether intentional or unintentional, may give rise to a claim of victimisation which will be assessed independently of the original allegation of discriminatory treatment.

The prohibition on victimisation within employment equality legislation can be said to be a cornerstone of the legislation, as it prevents employees who raise complaints under the legislation and confront discrimination from suffering any reactionary actions by their employer and therefore prevents any undermining of the effectiveness of the legislation. It is therefore crucial in maintaining the effectiveness and integrity of anti-discrimination legislation, as the protection provided by the prohibition on victimisation of employees provides a platform to allow employees to raise complaints of discrimination without fear of retaliation by their employer. It acts as a deterrent to adverse consequences for employees and protects employees from any hostile action or detriment on the part of their employer. An apt comment by the Labour Court to this effect is as follows:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution”. (Department of Defence v Barrett, EDA 1017).

Both the Equality Tribunal and the Labour Court have taken a harsh view of employers who are found guilty of victimisation of their employees and, to reflect this view, have awarded high levels of compensation.

There is a clear distinction in the provisions of the Employment Equality Acts between discrimination and victimisation, distinguishing the two concepts as distinct and separate. This has the effect of not importing a comparator element into the proofs necessary for victimisation and causes a re-focus to whether the employee was subjected to the detriment. However, victimisation is treated in a similar manner to discrimination concerning remedies, time limits and burden of proof.

In the instant case I conclude that the Complainant was victimised prior to the ratification process by at least one member of the CEC. It is impossible to say what effect his statement outlined above may have had on other members prior to the vote. The complaint of victimisation is well-founded.

I note that the General Secretary felt it necessary to explain to the CEC members what victimisation is and in evidence he accepted the Complainant may have been penalised.

Section 82 of the Act states the following:

(1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77

(e) an order that a person or persons specified in the order take a course of action which is so specified.

I have given a high level of consideration to the appropriate outcome and now conclude as follows:

1. It was stated at the hearing that the Complainant was not looking for financial compensation. I therefore award her no financial compensation.

2. Pursuant to section 82 (1)(e) of the Act I now order the Respondent to appoint the Complainant to the position of Assistant to the General Secretary. I note from the Respondent’s web site that the vacancy is still open. Should it be the case that the vacancy has already been filled the Complainant should be appointed as a supernumerary. Such appointment should be made within 6 weeks from the date of this decision.

3. I order the General Secretary, on behalf of the entire CEC, to provide an assurance to the Complainant that there will be no negativity shown to the Complainant on her appointment.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have given a high level of consideration to the appropriate outcome and now conclude as follows:

1. It was stated at the hearing that the Complainant was not looking for financial compensation. I therefore award her no financial compensation.

3. I order the General Secretary, on behalf of the entire CEC, to provide an assurance to the Complainant that there will be no negativity shown to the Complainant on her appointment.

Dated: 5th October 2022

Workplace Relations Commission Adjudication Officer: Jim Dolan

Key Words:

Employment Equality Act; Victimisation.