FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: MINISTER FOR HEALTH (REPRESENTED BY WILLIAM MAHER B.L. INSTRUCTED BY THE OFFICE OF THE CHIEF STATE SOLICITOR) - AND - MS NICOLA MATTHEWS (REPRESENTED BY FÓRSA) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(s)ADJ-00025554 CA-00032456-001 This is an appeal on behalf of the Minister for Health (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00025554, dated 2 March 2021) under the Employment Equality Act 1998 (‘the Act’) in which the Adjudication Officer had found that Ms Nicola Matthews (‘the Complainant’) had been indirectly discriminated against on the age ground in a promotional competition. The Respondent’s Notice of Appeal was received in the Court on 7 April 2021. The Court heard the appeal in Dublin on 25 and 26 January 2023. The Complainant gave sworn evidence as did the following witnesses on behalf of the Respondent: Professor Simon Wilson, Ms Grainne Duffy, Mr Paul Bolger and Ms Michelle Ruddy. Factual Matrix During the material period, the Complainant was employed as a Higher Executive Officer in the Department of Health (‘the Department’). In April 2019, the Department conducted an internal promotional competition to establish a panel of eligible officers for appointment at the grade of Assistant Principal. The Complainant applied but was not shortlisted for interview. She sought feedback from the Department and was advised in writing that her written application “did not illustrate evidence of experience relevant to the competencies required for the Assistant Principal position, specifically in the area of leadership/drive and commitment”. The Complainant requested an informal review of the Respondent’s decision but did not, ultimately avail herself of this or of the formal review mechanisms open to her under section 8 of the Code of Practice for Appointment to Positions in the Civil Service. On 25 November 2019, the Complainant referred a complaint to the Workplace Relations Commission alleging that her failure to progress to the interview stage in the Department’s internal promotional competition resulted from indirect discrimination on the age ground, contrary to the Act. The Complainant particularised her complaint as follows on the form submitted to the Workplace Relations Commission:
The Complainant’s Submission The Complainant’s submission relies heavily on the decision of the Equality Officer inGillen v Department of Health and ChildrenDEC-E2003-035 and in particular on the Equality Officer’s use of statistical analysis to find that the promotional policy of the Respondent in that case vis-á-vis appointments to the grade of Principal Officer was discriminatory on the age ground. The Complainant states at paragraph 11 of her written submission to the Court:
The Complainant also submitted that the shortlisting exercise was marked by a number of features that tended to support her concerns that it may not have been fair and unbiased. In particular, she submits that there was an absence of reasons for the decision-making process as there was “no evidence of notes nor a marking scheme used in the shortlisting phase”. She also complains that she received “no meaningful feedback” and alleges that the “anti-bias training” given to the selection panel did not adequately cover the shortlisting stage of the process. Finally, she takes issue with the fact that the age category into which applicants fell was known to the Shortlisting Board on the basis of the educational information that the candidates were required to disclose on the application form. The Respondent’s Submission The Respondent submits that the selection panel undertook a shortlisting exercise having regard to the total number of applications received for the internal Principal Officer competition in 2019. Candidates had been advised in advance that such an exercise might be undertaken and were encouraged, through their trade unions, to pay particular attention when completing their application forms for this reason. The shortlisting process, it submits, was one where each candidate’s completed application form was objectively assessed against the standard competencies for the grade of Assistant Principal by a Shortlisting Board that comprised three experienced individuals of mixed gender and age, one of whom was in the 50-65 age group, and one of whom was external to the Department. In the Respondent’s submission, Board members were provided with comprehensive training by an external expert trainer on unconscious bias and best practice techniques to avoid direct and indirect discrimination in the Shortlisting process. The Respondent submits that the statistical analysis relied upon by the Complainant is flawed. It is accepted by the Respondent that it supplied the data that the Complainant relies on but submits that it presented it to her in a format that was designed to protect the identity of the other candidates who participated in the competition, for example, through the use of unevenly spread age categories. In the Respondent’s submission, had the age groupings been different, the statistical analysis undertaken by the Complainant would have produced very different results. The Respondent’s position is that the Complainant’s assertions in relation to the shortlisting process (i.e. an absence of reasons for the decision-making process, and no evidence of any marking scheme) are not well-founded as the shortlisting process was a pass/fail binary process in which there was no requirement for a marking scheme. In other words, candidates were not sent forward to the interview stage if, in the assessment of the Shortlisting Board, their written application did not contain evidence that demonstrated possession of each of the required competencies. The Complainant, it submits, had not demonstrated she had sufficient competence in the area of leadership/drive and commitment and was, therefore, eliminated from the competition at the shortlisting stage. In response to the Complainant’s assertion that the did not receive “meaningful feedback” as to the reasons why she was eliminated, the Respondent submits that it complied fully with its obligations in this regard with the requirements of the Code of Practice. Furthermore, it is submitted, she could have proceeded with the informal review that she had requested and this would have provided an opportunity for a face-to-face meeting with a member of the Selection Board. It was also open to the Complainant to request a formal review of the process, if she wished. The Complainant’s assertion that the “anti-bias training” given to the selection panel did not adequately cover the shortlisting stage of the process”, is premised – in the Respondent’s submission – solely on her reading of the PowerPoint presentation used by the external trainer who instructed the Board immediately prior to the selection process. The Respondent submits that the training session was highly interactive and dealt comprehensively with the issues of bias and discrimination at all stages from the shortlisting stage through the interview stage. It further submits that detailed instructions and advice in relation those matters were also provided to the Board Members by Ms Grainne Duffy, Head of Strategic Human Resources in the Department. The Respondent accepts that some – but not all candidates – provided information in their application form about their educational attainments that could have facilitated members of the Board deducing the age category into which they fell. However, the Respondent submits that inclusion of such information (and, in particular, its inclusion in a manner that tended to indicate a candidate’s age) was not mandatory and, in any event, had no bearing on the shortlisting process as this proceeded solely on the basis of a consideration of the competencies demonstrated by each applicant on the face of their application form. The Complainant’s Evidence The Complainant referred to the Managers’ Assessment of her performance in respect of the competencies required of an applicant for appointment to the grade of Assistant Principal and to her own summary of her experience under the Leadership and Drive/Commitment competency heading included in her application form. She told the Court that she believed that, taken together, they provided a comprehensive overview of her professional and leadership experience. She also told the Court that she was ‘shocked’ to discover that she was deemed unsuccessful under this competency heading by the Shortlisting Board. Her evidence then moved to the written feedback she received from the Chairman of the Board – Mr Paul Bolger – on 5 June 2019 outlining the reason why the Board had decided not to progress her application. Thereafter, the Complainant invoked the informal review process but indicated to the Department on 24 July 2019 that, before she could proceed with this, she required the Board to set out its decision in writing to allow her to formulate her questions in relation to the decision-making process at any future meeting with a member of the Board. This request was declined but, nevertheless, the Complainant said that she did not consider invoking her right to a formal review. She repeated her request for “specific” feedback again on 9 August 2019, 11 October 2019 and 25 October 2019. Each request was declined and a feedback meeting with a member of the Board was offered. Finally, in her direct evidence, the Complainant told the Court that the Assistant Principal in her section retired in March 2020 and was not replaced until November 2021. During that period, she said, she assumed the Assistant Principal’s responsibilities although she was not formally requested by Senior Management to act up in the role and received no additional remuneration for doing so. Under cross-examination, the Complainant said that a number of successful candidates in the competition were younger and less experienced than her and she was, therefore, surprised to learn they had progressed to the next stage of the competition when she hadn’t. She accepted, however, that she had not managed any of the candidates in question. She described the written feedback that she received on 5 June 2019 as “not meaningful”. Counsel referred her to section 8.2 of the Code of Practice on Appointments to Positions in the Civil Service and the Public Service. The Complainant confirmed she was familiar with the informal and formal review processes outlined in that section of the Code. She also accepted that there is no requirement placed on an office holder under that section to provide a detailed written statement to an unsuccessful candidate in a recruitment process. Evidence of Professor Simon Wilson The witness was called by the Respondent to provide an expert opinion on the statistical analysis relied on by the Complainant to support her claim that the shortlisting process was tainted by indirect discrimination on the age ground. The witness outlined his professional qualifications and experience to the Court. He earned a PhD in statistics from George Washington University in Washington DC and is Professor of Statistics at Trinity College Dublin. His evidence-in-chief spoke to the methodology he used in preparing a detailed written report which was opened to the Court and the conclusions he arrived at. His analysis was based on the data relied on by the Complainant and a more detailed data set in relation to the competition, not released to the Complainant for reasons of confidentiality. The witness explained to the Court that he had applied three different analyses to the data used by the Complainant and concluded that they were all in agreement: “there is not a statistically significant difference in the shortlisting rates across the 4 age ranges”. The witness’s written report demonstrates that the way in which data are aggregated into age ranges can significantly affect the appearance of a trend with age. Having aggregated the data across difference age ranges to those used by the Complainant, the witness found, however, that “there is no statistically significant effect of age on the probability of being shortlisted”. It is useful to reproduce in full the witness’s observations on the Equality Officer’s decision inGillen:
Evidence of Ms Grainne Duffy The witness told the Court that at the material time she was Head of Strategic Human Resources in the Department and that, in conjunction with Workforce Planning, she had oversight of the competition for which the Complainant applied. The witness said that the Department had not imposed any quota on the number of applicants who could be shortlisted for interview but had informed the relevant trade unions in advance that shortlisting would take place based on the completed application forms. An email, dated 11 April 2019, sent by the witness to trade union representatives (including the Complainant) with the following information was opened to the Court:
The witness also gave evidence in relation to the procurement of training for the Board. This was delivered by Mr Brian McIvor whose brief was to deliver training in relation to the avoidance of conscious and unconscious bias at all stages of the selection process, having regard to the nine protected grounds in the Act. The witness confirmed that the Complainant’s request for more ‘meaningful’ written feedback before meeting with a member of the Board as part of the informal review process was not comprehended by the Code of Practice. Evidence of Mr Paul Bolger The witness is now an Assistant Secretary in the Department of the Environment. At the material time he was a Director in the Department (of Health) and was invited by Ms Duffy to chair the Selection Board for the Assistant Principal competition that ran in 2019. He told the Court that although he had previously sat on a number of interview boards, this was the first occasion he had been involved in a shortlisting process. He confirmed he had taken part in the training facilitated by Mr McIvor which took place on the eve of the shortlisting process. He said, given the timing of the training, there was quite a lot of focus on shortlisting and the appropriate steps to be taken to control for bias, including unconscious bias, in that context. The witness described how the shortlisting was progressed: each of the three members of the Shortlisting Board had their individual packs containing the applications which they reviewed individually before meeting to agree a final collective decision in relation to who would be shortlisted; they also agreed the reason why any particular candidate was eliminated at that stage. Under cross-examination, the witness confirmed that the Shortlisting Board had received the complete application form for each candidate, including any information about the candidate’s educational history. However, he said, the shortlisting exercise had focused on the information provided by the candidates in relation to the competency grounds and the Managers’ Assessments, as provided for in the Information Booklet. Evidence of Ms Michelle Ruddy At the material time, the witness was an Assistant Principal in the Human Resources section of the Department and had responsibility for the administration of the promotional competition at issue in this appeal. She was not a decision-maker in relation to any aspect of the competition. She provided the applicants’ packs to the Shortlisting Board and received the list of names of applicants shortlisted by it. The witness told the Court that she did all she could to facilitate the Complainant’s request for feedback. In her experience, she said, when a candidate disagreed with a Board’s assessment of their competencies, a meeting between the candidate and a member of the Board usually satisfied the candidate’s queries. The Law Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:
Discussion and Decision As stated above, the Complainant’s case on the appeal is predicated to a very large extent on her interpretation of the data in relation to the outcome of the shortlisting process following which she was eliminated from the internal promotional competition for Assistant Principal in the Department in 2019. Professor Wilson’s expert evidence to the Court – which was not traversed in any material way - was that the data, however presented, did not establish that there was a statistically significant difference in the shortlisting rates across age ranges. The Court, must conclude, therefore, that the Complainant’s evaluation of the data does not constitute a prima facie case of indirect discrimination. In arriving at its conclusion in relation to the Complainant’s reliance on her analysis of the data she received from the Department setting out the results of the shortlisting process, the Court is mindful of the following observations of the Court of Justice of the European Union inMargaret Kenny & Ors v Minister for Justice, Equality and Law Reform & Ors(Case C-427/11):
The Complainant also raised issues in relation to the advance training provided to the Board, the conduct of the shortlisting process, the provision of feedback and the inclusion of information about candidates’ educational achievements in the application forms provided to the Members of the Shortlisting Board. It is abundantly clear to the Court, having carefully considered the consistent, clear and cogent evidence of Ms Duffy, Mr Bolger and Ms Ruddy, that all aspects of the competition in so far as they impacted on the Complainant’s application were conducted fairly, objectively and in accordance both with Information Booklet given to all candidates and with the Code of Practice. The Complainant was not present for the training given by Mr McIvor; Mr Bolger was. Mr Bolger’s clear recollection, which the Court has no reason to doubt, was that the training occurred on the eve of the day the shortlisting took place and naturally, therefore, focused on the importance of safeguarding against bias and discrimination at that stage of the process as well as the subsequent interview stage. The decision of the Shortlisting Board to the effect that Complainant had not adduced sufficient evidence in her application form to demonstrate she met the leadership/drive and commitment competency and that this was the reason why she was eliminated from the competition at this stage was not called into question in any meaningful way by the evidence adduced by the Complainant in the course of the within appeal. Likewise, it is clear from both Ms Duffy’s and Mr Bolger’s evidence that the shortlisting process was a pass/fail binary one, based on the one criterion of whether or not a candidate had demonstrated each of the necessary competencies. It follows, therefore, that the notification received by the Complainant setting out the reason why she was eliminated is in itself a complete record of the decision in that regard and the reason for it. The Court has also carefully considered the relevant provisions of the Code of Practice in relation to feedback to unsuccessful candidates, the right of candidates to seek an informal and/or formal review of any decision of the Board in relation to their application. The Court finds that the Respondent and the Board fulfilled their obligations to the Complainant in this regard under the Code in full in all respects. Finally, the Court finds that Mr Bolger’s evidence that the Shortlisting Board based their decision to eliminate certain candidates from the competition at shortlisting stage based only on the material supplied by the candidates in relation to the competencies and the Managers’ Reports only, to be credible and convincing and not in any way traversed by that of the Complainant. Conclusion For the reasons set out above, the Court finds that the complaint of indirect discrimination on the age ground is not well-founded. The appeal succeeds and the decision of the Adjudication Officer is, therefore, set aside in full. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
