Complainant

Respondent

Parties

Siobhán McCoy

An Garda Síochána

Representatives

Michelle Bolger, ESA Consultants

Aislinn O’Donnell, BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00042757-001

25/02/2021

The complainant was attested as a member of An Garda Síochána in March 2010.  In 2018, she was assigned to the major incident room in the Garda Station in Dundalk.  There are 182 men and 40 women based in Dundalk, of which 28 are Detective Gardaí (26 men and two women).

In February 2019, the complainant sat an interview for the role of Detective Garda.  Although she wasn’t appointed to the panel of successful candidates, she got a score of 203 out of 250 at the competency-based interview, giving her a percentage rating of 81%.

The complainant went on maternity leave in September 2019 and she returned to work in March 2020.  She was pregnant with her second child in June 2020 when another competition for the role of Detective Garda was advertised.  Along with one female and 24 male colleagues, she applied again for the job and she attended an interview in August, when she was 36 weeks pregnant.  The interviews were conducted by Detective Superintendent (DS) Alan Cunningham and Inspector Valerie Gahan, who also conducted the interviews in 2019.  This time, the complainant got 175 marks out of 250 (70%) and she was not included on the panel of 13 successful candidates.

In April 2017, the complainant was assigned to work on a special investigation team normally comprised of Detective Gardaí and she said that this experience was relevant for the job of Detective Garda.  Following her return from maternity leave in March 2020, she did a course on incident room co-ordination.  As she had relevant experience and a further qualification, it is the complainant’s case that the results of her interview in August 2020 were influenced by the fact that she was obviously pregnant.  She claims that, by not appointing her to the panel of successful candidates, she was discriminated against on the grounds of gender and family status.

On behalf of the complainant, Ms Bolger submitted that the candidates who were selected for the interview in August 2020 had less service than her and that they did not meet the competencies for the role.  I understand from the evidence of the respondent that all 26 candidates who applied for the role in June 2020 were called for an interview.  Of the 13 candidates who were successful, six had less service than the complainant and seven had no children.  The 13 successful candidates were male.

The complainant argues that she was discriminated against on the ground of gender, due to her pregnancy, and on the family status ground, due to the fact that, when she was interviewed, she had one child. 

Legal Submission

Ms Bolger referred to the burden of proof in cases of discrimination, and the requirement for the complainant to set out the facts that lead to a presumption that discrimination has occurred.  Generally referred to as prima facie evidence, in this regard, Ms Bolger referred to Ntoko v Citibank [1] and the rationale for adapting the normal rules of evidence so that employees are not required to prove “something which is beyond their reach and which may only in the respondent’s capacity of proof.”

In the case of Dublin Corporation v Gibney[2], a “prima facie” case was defined as,

“…evidence which, in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.”

Ms Bolger also cited the decision of the Equality Officer in Minaguchi v Wineport Lakeshore Restaurant[3] and the test which must establish that,

(a)    The complainant is covered by the relevant discriminatory ground;

(b)    That she has been subjected to specific treatment and,

(c)     That the treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would have been treated.

In the case of A Technology Company v A Worker[4], the Labour Court held that the connection between the discriminatory ground and the alleged discriminatory act are not established by way of motive or intention, but rather, from the objective facts that infer that discrimination has occurred:

“A person with a disability may suffer discrimination not because they are disabled, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability.  The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discrimination motive, in the absence of independent corroboration, must be approached with caution.”

In the decision of the Court of Justice of the European Union (CJEU), Dekker v Stichting Vormingscenrum voor Jong Volwassenen[5] the Court held that pregnancy is a uniquely female condition and less favourable treatment due to pregnancy constitutes discrimination on the gender ground.  Finding that the respondent in that case had breached Council Directive 2000/78/EC, “the Equal Treatment Directive,” establishing a general framework for equal treatment in employment, and, upholding the complainant’s position, the Court stated:

“It should be observed that only women can be refused employment on grounds of pregnancy and such refusal therefore constitutes direct discrimination on grounds of sex.  A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy.  Such discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of the maternity leave.”

As a final precedent, Ms Bolger referred to the case of Byrne v the Minister for Defence[6] in which it was held that Ms Byrne, who was a captain in the Defence Forces, was denied the opportunity for promotion when she was on maternity leave.  She had not been advised that officers at a more senior rank had retired and that their roles were open for others to be promoted in to.  Four male officers were promoted to the rank of commandant.

In the case we are considering, the complainant was on maternity leave in 2019 and Ms Bolger submitted that she was at a disadvantage because the respondent failed to advise her of competitions, courses and career development which may have been available to her during her maternity leave.  In 2020, when she was pregnant again, she applied a second time for the role of Detective Garda.  Despite having held the position in the incident room and a role next in line to that of Detective Garda, she was not selected for the job.  Ms Bolger submitted that the interview board has sought to excuse their discriminatory conduct by unfairly scoring the complainant with low marks in the interview.

Evidence of the Complainant, Garda Siobhán McCoy

Ms Bolger asked the complainant about an assignment she undertook in 2017.  The complainant said that she was assigned for a year to the Garda Station in Ardee, County Louth, when she was nominated with two other Gardaí to participate in an investigation into an IRA murder in 1991.  The team was comprised of three members at the rank of detective and three Gardaí from the Dundalk station.  The complainant said that she and the two other Gardaí joined the team because detectives in Dundalk were too busy.  She said that she was nominated to the team because of her capabilities and that the assignment gave her high quality investigative experience.

When a competition opened for Detective Garda roles in 2019, the complainant said that there hadn’t been a competition for five or six years and there was a lot of interest in the jobs.  She said that, although she wasn’t appointed to the panel, she was pleased with the results of the competition, and her score in the interview of 203 marks out of 250.  

When the results of the competition were announced around the end of February 2019, the complainant said that she told her supervisor that she was pregnant.  She said that she was offered a place on a course in Templemore on incident room co-ordination and she went on the course in April 2019.  She was then restricted to “indoor work,” meaning that she was not assigned to confrontational duties, until she went on maternity leave in September that year.  She returned to work in March 2020.  While she was on maternity leave, the complainant said that she got no information about training or development. 

In June 2020, another competition was advertised for the role of Detective Garda.  The complainant said that she applied again, and, on her application form, she said that she didn’t deviate from the contents of the form she completed in February 2019.  She said that she thought that the fact that she had done the incident room training and the fact that she had more experience would stand to her.

When she was interviewed in August 2020, the complainant said that she was 36 weeks pregnant.  She said that she was surprised with the outcome of the interview, and the fact that her interview score was less than the score she was given in 2019.  She said that she spoke to a named superintendent and she told him that she was disappointed.  She said that he asked her about how many drugs cases she had been involved in and how many circuit court cases she had dealt with.  The complainant said that, before she went on maternity leave in September 2019, she had been on indoor duties and not involved in drugs cases or circuit court cases.  She said that she reminded the superintendent that she had been involved in the murder case in the Ardee station which she felt would place her in a reasonable position to be promoted.  She said that she felt that she got no credit for that work. 

The complainant said that she made an appointment to speak to the chief superintendent in the station in Drogheda and he advised her to take a formal approach to her grievance, by appealing to the Commission for Public Service Appointments (CPSA).  She made a written submission to the CPSA and she was interviewed by an independent superintendent.  She said that she was advised that the superintendent would get a report from the interview panel and a report from the superintendent in Dundalk about the gender breakdown in that station.  In a report produced on March 5th 2021, the superintendent concluded that there was no evidence of discrimination in the interview process, although he stated that he had a concern about the gender imbalance in the Dundalk detective unit.

Cross-examining of the Complainant

In cross-examining by Ms O’Donnell on behalf of the respondent, the complainant said she had no issue with the interview she did in 2019 and she agreed that the people who interviewed her were competent.  She said that she was interviewed by the same panel in 2020.  She said that she felt that she performed better at the 2020 interview.

The complainant agreed that there were no marks at the interview for length of service or for attendance at training courses and that the marks were for the five competencies.  The maximum number of marks for each competency was 50, giving a maximum possible score of 250.  The complainant agreed with Ms O’Donnell that the incident room course did not feature on the role profile.

The complainant agreed that the job of Detective Garda is not a promotion, in that, it is not at a higher rank to a Garda, but that it involves moving into a specialist area.  She said however that, in her opinion, additional experience is required to be appointed to the job.

In response to a question from Ms O’Donnell about the experience of the successful candidates, the complainant said that six of the 13 had not done firearms training.

Ms O’Donnell referred to the total of 175 marks achieved by the complainant in the interview in August 2020, resulting in a rating of “very good.”  The complainant replied that, in 2019, her 203 marks indicated that she was almost in the “excellent” category. 

Ms O’Donnell said that the complainant was marked according to her performance on the day of the interview and she asked her if she gave the same answers that she gave in 2019.  The complainant said that there wasn’t much in the difference between her answers in August 2020 compared to her answers in February 2019.  Ms O’Donnell said that it will be Mr Cunningham’s evidence that the candidates in 2020 were better than those who were interviewed in 2019.  She submitted that what might be an excellent answer in 2019 might not be excellent in 2020.  The complainant replied that some of the candidates who were selected for the job in 2020 were not eligible to apply in 2019.

Ms O’Donnell referred to the fact that five of the successful candidates have children.  The complainant replied that all five are men.

Re-direction by Ms Bolger

The complainant didn’t go a firearms course that took place when she was on maternity leave.  She said that she wasn’t informed about the course.

Ms Bolger asked the complainant what the CPSA report said about improvements in gender balance.  The complainant referred to the remarks made by the investigating superintendent and she said that a strategic plan was to be developed to promote equality, diversity and inclusion in the Dundalk station.

Ms Bolger asked the complainant why she felt that, compared to the 2019 competition, the 2020 competition was less intense, or less competitive.  The complainant explained that, in 2019, there hadn’t been a competition for several years and there was a pent-up interest.  In 2020, new people were applying for the role.

Evidence of Superintendent Fergus Treanor

Superintendent Treanor said that he was a superintendent in the Garda station in Ardee with responsibility for investigating a historical murder.  He looked for a team of detectives to work on the case.  He was advised that because of the volume of work being done by detectives in Dundalk, that there were none available, but three Gardaí were selected who were suitable for investigative work.  The complainant was one of the three selected and Superintendent Treanor said that he ascertained that she had the capabilities to do the work, which, he said was similar to detective work.  He said that the complainant was an excellent police officer and that she displayed a level of competency for the investigation, which presented many challenges for the team.

Cross-examining of Superintendent Treanor

In response to a question from Ms O’Donnell, Superintendent Treanor said that he could not say how the complainant would have performed at an interview.

The role profile for the position of Detective Garda was included in a comprehensive submission provided by the Office of the Chief State Solicitor.  This showed that the minimum service required to apply for the role was one year of operational policing after probation.  Essential experience was listed as:

§  Experience of crime investigation;

§  Experience of prosecutions in the district and circuit courts;

§  Competency in report-writing.

Desirable qualifications were a standard driving course, a firearms course and competency in Microsoft Word and Excel and the use of the Pulse system.  The role profile also stated that it was desirable to have experience as part of a major investigation team.

The role profile set out the necessity for five core competencies on which the interviews in 2019 and 2020 were based:

1.       Respect for diversity;

2.       Problem-solving;

3.       Teamwork;

4.       Personal responsibility;

5.       Effective communication.

The competition for the role of Detective Garda in 2020 was carried out in accordance with,

§  An Garda Síochána Guidelines for Internal Appointments and Promotion, referred to in the respondent’s submission as “the Guide,” and,

§  The Code of Practice of the Commission for Public Service Appointments for Appointments in the Civil and Public Service, referred to as “the Code of Practice.”

The respondent’s submission states that the selection of the most suitable candidates for roles is one of the most important decisions made by Garda management, being the basis for the development of an effective workforce.  The aim of the Guide is to achieve the highest standards of probity, merit, equity and fairness for internal appointments and promotions.  Only persons who are trained in competency-based interviewing are permitted to sit on interview boards.  With training, interviewers are enabled to develop skills in questioning, rating and evaluating candidates fairly and consistently.

In accordance with the Guide, following an interview, interviewers must discuss the responses of each of the candidates and compare the responses against pre-set criteria and use their judgement to award a rating.  The ratings promote objectivity, ensure a consistent approach and are an effective way of distinguishing between poor, good and exceptional candidates.  Each candidate’s performance is rated out of a possible total of 250 marks with a maximum of 50 marks awarded for each of the five core competencies.

In February 2019, the complainant applied for a competition which advertised 18 vacancies at the role of Detective Garda.  In all, 45 Gardaí applied, nine of whom were women.  The vacancies were filled by fifteen men and three women.  As we know, the complainant was not successful in this competition although she received a high score of 203 marks out of 250.

The competition for roles at the level of Detective Garda announced in June 2020 was for 10 panel members and three reserve members.  In response to the advertisement of the competition, 26 Gardaí applied, two of whom were female.  Based on her application form, the complainant was awarded 22 marks out of a total of 25.  DS Cunningham was appointed as the chairman of the interview board.  He was part of the Northern Region and he was attached to Monaghan Garda Station.  He was accompanied by Inspector Valerie Gahan. Both had been trained in competency-based interviewing and they had experience of conducting competency-based interviews.

Notes taken by the interviewers during their interview with the complainant were submitted with the respondent’s book of documents.  A uniform approach to asking questions was adopted by the interviewers and each candidate’s interview lasted 20 minutes. 

The interview feedback and rating form shows that the complainant was awarded 175 marks out of a possible total of 250.  This placed her in the “very good performance” range in respect of each of the five competencies.  While she received higher marks at her interview in February 2019, the respondent’s submission states that the marks awarded at a previous interview had no bearing on the marks given in the 2020 competition and the marks were awarded for each competency based on the complainant’s performance at the interview on the day. 

The list of the 13 successful male candidates who were placed on the panel shows that six had less service in An Garda Síochána than the complainant.

Review under Section 8 of the Code of Practice

The complainant requested a review of the outcome of her assessment in the 2020 competition, alleging that she had been discriminated against on the grounds of gender and family status.  A review was conducted by Superintendent Paul Costello, who interviewed the complainant and considered reports submitted by the interview board.  Superintendent Costello found that there was no breach of the Code of Practice.

Legal Submission

The respondent’s submission referred to the definition of discrimination as set out at section 6(1) of the Employment Equality Act 1998 (“the Act”) and the provision at section 8(1) that an employer shall not discriminate on any of the nine discriminatory grounds.

Ms O’Donnell referred to the burden of proof at section 85A of the Act, and the responsibility of the complainant, in the first instance, to demonstrate evidence of discrimination.  It is only if I, as the adjudicator, am satisfied that this evidential test is met, that the burden of proving that discrimination has not occurred shifts to the respondent.  In this regard, Ms O’Donnell referred to the seminal decision of the Labour Court in Mitchell v Southern Health Board[7], and the Court’s finding that Ms Mitchell had not discharged the evidential burden:

“The Court accepts that the appellant might reasonably have expected that her past service and clinical experience would have been a decisive factor in her favour.  However, in the Court’s view, these considerations could not of themselves establish that the selection made was so irrational or unfair as to raise a presumption of unlawful discrimination.”

Ms O’Donnell submitted that, to discharge the evidential burden, the decision, which is the subject of challenge, must have been “irrational or unfair.”

The fact that 13 male candidates were successful cannot give rise to an inference of discrimination, as is clear from the observations of the Labour Court in Rescon Limited v Scanlan[8]:

“In the Court’s view a mere difference in gender and a difference in the treatment (in the sense that the Comparator was appointed and the Complainant was not) could never in itself provide a sufficient evidential basis upon which to raise a presumption of discrimination (see the recent decision of the Court of Appeal of England and Wales on this point in Madarassy v Nomura International Plc [2007] IRLR 246 at para. 54).”

Applying the Rescon rationale, the statistical imbalance between the number of male and female candidates must be considered.  Only two of the 26 candidates who applied were female, one of whom was the complainant.

The mere fact that the complainant was pregnant when she was interviewed cannot raise a presumption of discrimination.  If this logic was to be accepted, an employer would never be able to refuse to promote a pregnant employee, for fear of a presumption of discrimination.

A “prima facie” case of discrimination can only be established if a less qualified male candidate is appointed to a post ahead of a more qualified female candidate.  The employee bringing a claim of discrimination must establish firstly, that she is more qualified than her male comparator (see Client Logic Trading as UCA + L v Gill[9]).  Secondly, she must establish that her qualifications are relevant to the particular role (See O’Halloran v Galway City Partnerships[10]). 

From the deliberations of the Labour Court in Client Logic, an inference of discrimination may be drawn if a less qualified candidate is appointed over a more qualified candidate of a different gender.  It is the respondent’s case that the qualifications relied upon by the complainant must be required for the post of Detective Garda.  As is clear from the decision in O’Halloran v Galway City Partnerships, if the complainant has particular qualifications, but these are not required for the post, they are not relevant for establishing a prima facie case:

“Where a better qualified candidate is passed over in favour of a less qualified candidate, an inference of discrimination can arise (see Wallace v South Eastern Education and Library Board [1980] NI 38 IRLR 193).  However, the qualifications or criteria which is to be expected of candidates is a matter for the employer in every case.  Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness.  It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination can arise.”

While the complainant appears to suggest that she was better qualified that the 13 successful candidates, the determinative criteria for the post set out the qualifications and the core competencies which were required.  Provided they had one year of operational policing after probation, the interview board placed no relevance on a candidate’s length of service and each candidate was considered based on their responses to questions on the core competencies.  The fact that the complainant did a course in incident room co-ordination is not relevant, because that training was not required for the role.

Following the authority in O’Halloran, the respondent did not apply the criteria inconsistently nor was the complainant better qualified than a successful candidate and an inference of discrimination cannot arise.

In its decision in DPP v Sheehan[11], the Labour Court held that an inference of discrimination can arise from an unexplained procedural unfairness in the selection process.  The Court stated:

“What the complainant must establish is a factual matrix from which the Court may properly draw an inference that discrimination has occurred.  There is no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies.  However, an inference of discrimination can arise where, for example, a less qualified man is appointed in preference to a more qualified woman.  (Wallace v South Eastern Education and Library Board [1980 NI 38 IRLR 193).  It can also arise from an unexplained procedural unfairness in the selection process.”

The complainant stated that the felt that the 2020 interview went better than the interview she did in 2019 and she has not raised any allegation of procedural unfairness that may lead to an inference of discrimination.  It is the respondent’s position that the interview complied with the Guide, the Code of Practice and general good interview practice.  Interview notes were retained, clear criteria were established and issued to the candidates in advance of the interview and a mechanism existed whereby marks were allocated under clear headings.  Robust procedures were in place to ensure transparency, consistency, impartiality, objectivity and equality.

Setting out my function as the adjudication officer in this matter, Ms O’Donnell referred to the decision of the High Court in O’Higgins v the Labour Court and University College Dublin[12].  The judgement as to whether the complainant met the standard required by the competencies is delegated to the members of the interview panel and not to me.  My role is to ensure that the selection process was not tainted by unlawful discrimination and I must not look behind the decision or substitute my views for the views of the interview panel unless there is clear evidence of unfairness.  This was underlined by the Labour Court in its decision in Client Logic.

The complainant has not provided any evidence of unfairness in the selection process and her complaint is limited to the fact that 13 male candidates were selected for the role of Detective Garda and she was not selected.  This does not establish that the result was manifestly irrational.

Regarding the complaint of discrimination on the ground of family status, the complainant claimed that, of the 35 Detective Gardaí appointed in 2019 and 2020, only two are female and these two have no children.  The respondent’s position on this is that the complaint is misconceived because the appropriate comparator is a person who has no children irrespective of gender.

It is the respondent’s case that the complainant has not discharged the evidential burden of proving that she was discriminated against.  The grounds on which she relies are entirely speculative.  The 2020 competition was held in accordance with the Guide and the Code of Practice and was based on objective ratings to ensure that the candidates were appointed on merit regardless of their gender or family status.

Evidence of Retired Superintendent Alan Cunningham

Mr Cunningham said that, prior to his retirement, he was a regional detective superintendent in the northern region, based in the Garda station in Monaghan.  He was on the interview panel for the role of Detective Garda in Dundalk in 2019 and 2020.  Ten years beforehand, he did a two- day course on competency-based interviewing skills.  He was involved in about 100 interviews for competitions for the Detective Garda role in Louth, Donegal and Sligo.  Mr Cunningham said that the interviews were carried out in accordance with the CPSA Guidelines for Internal Promotions and Appointments.

Ms O’Donnell directed Mr Cunningham’s attention to the rating scale at page 53 of the Guidelines.  Marks are awarded to candidates in response to their answers to questions to determine their competency in specific areas.  Marks are awarded for each competency out of a possible total of 50 marks and are categorised as follows:

1 – 10:  Significant Weaknesses.  The candidate is unable to demonstrate that they have the relevant skills and abilities to a satisfactory standard.

11 – 20:  Mixed with Some Weaknesses.  The candidate needs some training and development to perform the duties satisfactorily.

21 – 30:  Acceptable.  The candidate has demonstrated competency at the required level.

31 – 40: Very Good Performance.  The candidate possesses highly developed and relevant skills and his or her performance exceeds expectations.

41 – 50:  Excellent.  The candidate possesses highly developed and relevant skills and his or her performance clearly cannot be improved upon.

 Mr Cunningham said that the candidates were awarded marks based on their responses to questions on the five core competencies:

1.       Respect for diversity;

2.       Problem-solving;

3.       Teamwork;

4.       Personal responsibility;

5.       Effective communication.

Ms O’Donnell referred to the complainant’s evidence that her performance at the interviews in 2019 and 2020 were similar.  Mr Cunningham said that he thought that the complainant performed poorly in 2020, that she was quite nervous, that she hesitated and, when probed, her responses were not as good as the answers she gave in the 2019 competition.

Mr Cunningham said that the 2020 candidates were younger than the 2019 cohort, and that the quality of their answers was high.  He said that the younger candidates were more tuned in to a competency-type interview.

Asked how the complainant went from an “excellent” rating in 2019 to a “very good” rating in 2020, Mr Cunningham said that it was down to her performance on the day.  He said that it depends on the calibre of the other candidates and that the group in 2020 were more competitive.

Mr Cunningham said that the marks were awarded when all 26 interviews were finished.

Mr Cunningham said that he knew the complainant and that she had been in the station in Monaghan, and that he hoped that she would do better on the day.  He said that the questions at the interview were confined to the five competencies.

Cross-examining of Retired Superintendent Cunningham

Ms Bolger asked Mr Cunningham how an interview board might respond to a candidate who might not be presenting the best version of themselves.  He replied that the interviewers reach out to get the best out of each candidate by asking about how they achieved the competency in question.

Mr Cunningham said that the interview board do not have a discussion after each interview, but at the end of all the interviews.  They then review the answers to all the competencies and award the marks for each. 

Ms Bolger asked Mr Cunningham about his observation that, in August 2020, the complainant did not perform as well as she did in February 2019.  Mr Cunningham recalled that the complainant did a better interview in 2019.  He said that, in 2020, she was more nervous and that she came second last in the scoring.  He suggested that this may have been due to nervousness.

Ms Bolger asked Mr Cunningham how it was that having got a very good score in 2019, the complainant performed so badly in 2020 that her score went down by 10%?  In 2020, although she was more experienced, was she marked down because of nerves? 

Mr Cunningham replied that that was the outcome of the short-listing process and that a candidate’s performance on the day is what counts.  He said that the candidate who was most recently out of Templemore was one of the best performers and that skills and service don’t count.  He said that you try to get the best out of the candidates by drawing them out, but what counts is their performance on the day.

When all the interviews are done, Mr Cunningham said that each candidate is awarded a score.

Mr Cunningham said that the interviews last around 35 or 40 minutes, although some candidates want to say more.  Each competency is given five or six minutes at the interview. 

Closing the respondent’s case, Ms O’Donnell said that the complainant produced no evidence from which an inference of discrimination can be drawn.  Referring to the Rescon case (footnote 8) Ms O’Donnell said that the fact that only men were appointed to the panel of Garda Detective in August 2020 cannot lead to an inference of discrimination.  Out of 26 applicants, two were female, and 13 males were successful. 

Ms O’Donnell referred to the precedent of Client Logic v Gill (footnote 9) and the fact that gender discrimination can only be shown if a less qualified male is selected over a more qualified female.  She said that the evidence given by the respondent’s witness is that competencies are relevant at the interview stage, and not skills or qualifications.

Referring to the DPP v Sheehan decision (footnote 11), Ms O’Donnell said that there was no unexplained procedural unfairness in the process of selecting the candidates for the role of Detective Garda and the complainant has submitted no complaint in this regard.

Ms O’Donnell concluded by submitting that the net issue is whether the complainant was discriminated against at the interview in August 2020 and she argued that the case is speculative and that there is no evidence of discrimination on the ground of gender or family status.

In her closing remarks on behalf of the complainant, Ms Bolger introduced the precedent of Nagarajan v London Regional Transport[13], where it was held that the proscribed ground may not be the only reason for the discrimination which is alleged, but it is enough that it was a contributory reason.

The interviews that the complainant attended in February 2019 and August 2020 were conducted by the same two interviewers.  The same competencies were examined and much the same questions were asked.  The complainant’s evidence is that the interviews took about 20 minutes, whereas the respondent’s witness said that they took between 35 and 40 minutes.  The respondent’s submission agrees with the complainant’s recollection, that her interview lasted 20 minutes.  It is apparent from the respondent’s evidence that the complainant was marked down on her answers to the competency questions.

For direct discrimination to have occurred, Ms Bolger submitted that there is no requirement to introduce a comparator.  In this regard, she referred to the decision cited by the respondent, O’Higgins v UCD (footnote 12).  Ms Bolger asserted that, in a situation where the only variable between 2019 and 2020 is that the candidate was 36 weeks pregnant, it seems likely that this is the reason that she was marked down.

Ms Bolger said that the fact that some of the successful candidates have children doesn’t depart from the fact that they are men.

Ms Bolger referred to the outcome from the CPSA review which found no procedural unfairness in the manner of the interview in 2020, but that there was a case for improving the gender balance in the cohort in the role of Detective Garda in Dundalk.

Ms O’Donnell submitted that if I, as the adjudicator, find that the complainant has demonstrated, on a prima facie basis, that she was discriminated against, then the issue is how her performance on the day of the interview was assessed.  Ms O’Donnell said that every interviewee was considered on the basis of their performance.  Referring to the decision in O’Higgins v UCD, Ms O’Donnell said that the complainant must show that the evidential burden has been met in relation to how her interview was conducted.

Ms Bolger submitted that discrimination is not always obvious, and that it can be inadvertent.  The complainant is not arguing that anyone set out to discriminate against her, but the difference in how she was assessed at the August 2020 interview compared to the interview in February 2019 must be examined.  Mr Cunningham gave evidence that he observed that the complainant was nervous in 2020.  The only variable between 2019 and 2020 was the fact that she was pregnant.

The Relevant Law

The opening section of the preamble to the Employment Equality Act 1998 tells us that the legislation is derived from certain EU directives on equal pay for men and women and equal treatment as regards access to employment.  The objective of the legislation is to make “further provision for the promotion of equality between employed persons.”  The Act goes on to provide that, in respect of access to employment and terms and conditions of employment, employers must not discriminate under nine specific headings, the “discriminatory grounds,” including the gender and family status grounds.

Discrimination is defined at section 6(1) of the Act: 

“…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

A new sub-section, (2A) was inserted into the 1998 Act by the Equality Act 2004.  This provides that less favourable treatment of a pregnant employee is to be considered as discrimination on the gender ground:

“(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

It is the complainant’s case that she was discriminated against when she was awarded less marks at an interview in August 2020, when she was 36 weeks’ pregnant, compared to an interview she did in February 2019, when she was also pregnant, but not obviously so. 

The Burden of Proof

In their submissions, the representatives for both sides referred to the burden of proof set out at section 85A of the 1998 Act, which was inserted by section 36 of the Equality Act 2004:

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The seminal decision of the Labour Court cited by Ms O’Donnell, Mitchell v Southern Health Board (footnote 7), published in 2001, preceded the insertion of section 85A into the 1998 Act.  However, considering the issue of the burden of proof, the Court noted the imminent transposition into Irish law of Council Directive 97/80/EC on the burden of proof in discrimination cases and the findings in Wallace v South Eastern Education and Library Board[14].  The Court noted that,

“Wallace is authority for the proposition that, where is it established that a person suffered discrimination in the filling of a post, the onus shifts to the employer to establish that the discrimination did not arise from the gender of the unsuccessful candidate.”

Finding that the principles set out in Wallace were consistent with Article 4 of Directive 97/80/EC, the Court concluded that they provided the appropriate procedural rule to be applied in Mitchell.  Considering the extent of the evidential burden which a complainant is required to discharge before a prima facie case of discrimination on the gender ground can be made out, the Court held 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.

“It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

Relying on the outcome of Client Logic v Gill (footnote 9), Ms O’Donnell submitted that a prima facie case of discrimination can only be established if a less qualified male candidate is appointed to a post ahead of a more qualified female candidate.  This precedent is not useful in the instant case, because each of the 26 candidates selected for interview in August 2020 were shortlisted because they had the skills and qualifications necessary for the job.  The respondent’s evidence is that the 13 candidates placed on the panel were selected on the basis of their performance at the interviews.  I intend to apply the test set out in Mitchell, and to consider if, on the balance of probabilities, the complainant has shown that she received less marks in her 2020 interview because she was pregnant.

The Primary Facts

When she was interviewed in February 2019 for a role as a Detective Garda, the complainant was in the early stages of pregnancy, but this would not have been obvious to her interviewers, DS Cunningham and Inspector Gahan.  She was awarded 203 marks out of a possible 250, a score of 81%.  However, the 18 successful candidates (15 men and three women) achieved a higher score and the complainant was not appointed to the panel.

Because of her pregnancy, in April 2019, the complainant ceased public order policing and outdoor duties and she was assigned to the major incident room in Dundalk.  She attended a one-week course in Templemore in incident room coordination.  She went on maternity leave in September 2019 and returned to work in March 2020.

In June 2020, there was another competition for the job of Detective Garda and the complainant was interviewed on August 21st.  She was then 36 weeks pregnant and DS Cunningham and Inspector Gahan were the interviewers this time also.  Although the competency questions were the same as those that were asked in February 2019, the complainant got 175 marks out of 2013, a score of 70%.  Out of the 26 applicants, one other female officer applied for the role, and the 13 successful candidates were men.

By August 2020, the complainant had completed 10.5 years of service with An Garda Síochána.  Six of the successful candidates had between three and five years’ service.  Six had between 10 and 13 years’ service and one had service of more than 25 years.

The complainant had been assigned to a cold case review team in 2017 to investigate a 1991 murder by the IRA on the Cooley Peninsula.  The Garda members of the team were selected because of difficulties freeing up experienced detectives in the Dundalk station.  The complainant argues that this provided her with useful experience for the role of Detective Garda.

When the 2020 competition was completed, of the 35 detectives appointed to the role in Dundalk, two were female, and these two were unmarried with no children. 

Has the Complainant Met the Initial Burden of Proof?

To meet the initial burden of proof, the complainant is required to set out facts that demonstrate that, on the balance of probabilities, the reason she was awarded less marks in her 2020 interview compared to the interview she did in 2019 was because she was pregnant and because she has children. 

As set out Dublin Corporation v Gibney (footnote2), I must consider the facts and reach a conclusion based on what a reasonable person would conclude.  In February 2019, the complainant was interviewed for the role of Garda Detective and she achieved a score of 81%.  In August 2020, when she was interviewed for the same job by the same interviewers and asked questions on the same competencies, her overall score was 70%.  In August 2020, she was 36 weeks pregnant and in February 2019, she did not look pregnant.  The important fact is not simply that the complainant was pregnant at her interview in August 2020, but that, when she was not visibly pregnant in February 2019, she got higher marks.  Taking my authority from Mitchell, I cannot avoid the conclusion and, it is my view that any reasonable person would concur, that these are facts “of sufficient significance to raise a presumption of discrimination.”

The complainant also claims that she was treated less fairly because of her family status – the fact that she is a parent.  To support this claim, she said that seven of the successful candidates in 2020 had no children at the time of their interview.  However, six of the successful candidates had children and the evidence indicates that being a parent was not detrimental to being appointed to the Detective Garda position.  I find that the complainant had not discharged the burden of proving that she was discriminated on the family status ground. 

The burden of proving that discrimination on the gender ground did not occur now shifts to the respondent.

The Respondent’s Case that Discrimination has not Occurred

At the hearing of this complaint, we learned that the criteria of service, skills and qualifications are decided at the short-listing stage of the competition for roles.  Once a candidate demonstrates that they have the minimum length of service (one year after probation) and the essential experience of crime investigation, court prosecutions and competency in report-writing, they proceed to the interview stage.  No further consideration is given to length of service, skills or qualifications once the candidate is selected for interview, and what counts in the final score is how they perform at the interview.

Competency-based interviewing is a technique used to elicit from candidates examples of past experience that show that they could do well in the role for which they are being interviewed.  Questions are formulated around four or five key competencies for a job and, having been informed in advance what the competencies are, each candidate is asked the same questions.  The objective is to make the interview as relevant as possible to the role and to avoid inconsistencies when interviewers come to assess each candidate’s suitability.

Assessing a candidate for a job is not a science, and, while competency-based interviewing seeks to impose rigour and objectivity on the interview process, it does not eliminate the risk that a confident and polished performer can “talk up” their experience.  In his evidence, Mr Cunningham said that the “younger candidates were more tuned in to a competency-type interview” and this appeared to explain why candidates with less service than the complainant scored better than her.  The complainant made no allegation of unequal treatment on the ground of age but, Mr Cunningham has inadvertently sought to explain her low marks by giving his opinion that young people are better at competency interviews.  The problem with this explanation is that none of the young people who got higher marks than the complainant was pregnant and they were all men. 

Mr Cunningham recalled that, at the August 2020 interview, the complainant was quite nervous, that she hesitated and that her responses were not as good as the answers she gave in the 2019 competition.  In her own evidence, the complainant said that she felt that she did a better interview in 2020 than she did in 2019, which makes sense, as she had been through the experience before.  The focus of a competency-based interview is on content: can the candidate show, by relevant examples, that they have the experience to do this job?  It is the responsibility of the interviewer to elicit information from the candidate, and to overcome any nervousness that may be apparent.  The attention of the interviewer is on what the candidate says, rather than how it is said.  I have reviewed the interview notes from 2019 and 2020 and there is very little difference between the answers the complainant gave in 2019 compared to 2020 – at least those answers that are recorded in the notes.  If Mr Cunningham observed that the complainant was nervous, then he had a duty to test that perception and to put her at ease.  The fact that he did not do so leads me to accept her own evidence that she thought the interview went well and that she was not nervous.

In his evidence, Mr Cunningham said that each of the candidates were interviewed for about 40 minutes.  It is apparent that this was not the case, because the schedule of interviews for August 20th and 21st was provided in evidence and this shows that 30 minutes was allocated for each candidate.  In the notes of the complainant’s interview, it is evident that her interview lasted for 22 minutes.  It is my view that this is not an adequate amount of time for a candidate to give a proper account of their experience or to deal with any opening nerves.  It also has the effect that the candidate’s “performance” in 20 minutes has more of an impact than their answers to the questions asked.

Another explanation Mr Cunningham gave for the complainant getting less marks in 2020 compared to 2019 was his assessment that the standard of the candidates was better in 2020.  He did not explain how they were better or what measure was used to determine their superior abilities.  He simply said that they were “very competitive.”  This is a subjective judgement, based on a perception of an individual’s ambition to succeed.  I have a concern that, faced with a heavily pregnant woman and a number of young and ambitious men, Mr Cunningham made a subjective assessment and decided in favour of the men.

In his evidence, Mr Cunningham said that marks are not awarded to candidates at the end of each interview, but when all the interviews are finished.  It seems to me that this approach is not in accordance with the Guidelines for Internal Appointments and Promotion which, under the heading, “Objective scoring and evaluation,” states as follows:

“Interviewers should discuss the responses of candidates, compare them against pre-set criteria and use their judgement to apply rating scales.  Generally, interviewers rate each candidate individually and then compare ratings with fellow interviewers before agreeing a final rating.”

My interpretation of this is that the interviewers should rate each candidate at the end of their interview, that they should each give their own rating and that this should be discussed and an agreed rating applied.  With this approach, the rating is closely connected in time with the answers given by the candidate.  The approach adopted by Mr Cunningham and Inspector Gahan, where all 26 candidates were rated at the end of two days of interviewing, risks the most memorable, “best performing” candidates receiving the highest marks.  As someone experienced in interviewing, I know that this “group assessment” also risks the manipulation of marks to ensure that the perceived best performers come out on top rather than those who provide the most relevant answers.

Before concluding, I wish to make a final observation about the interview process.  As it is with every organisation, and, as set out in the respondent’s submission, the selection of the most suitable candidates for roles is one of the most important decisions made by Garda management.  Appointing the right person to a job is what makes organisations succeed and, for an organisation like An Garda Síochána, the right person in a job inspires public confidence and the confidence of everyone who works there.  Bias is not something that any of us will own up to, but it is an affliction everyone (including adjudication officers) suffers from.  Unconscious bias means that we don’t recognise when we prefer one person over another, and we cannot explain the reason why.  From an organisational perspective, unconscious bias means that the people who get promoted are likely to mirror the attributes of the hirers.  For this reason, it is important that an interview panel includes someone independent of the organisation. 

Conclusion

In her submission for the respondent, Ms O’Donnell asserted that it is not my role as the adjudicator in this matter, to consider if the complainant was a suitable candidate for appointment to the job of Detective Garda in August 2020.  I agree with her on that point.  I have no authority to insert myself into the selection process or to decide that the complainant was more suitable than any other candidate.  My task is to consider if, the fact that the complainant was pregnant at her interview in 2020 had an influence on the marks she was awarded. 

It is my view that the interview process in which the complainant participated in August 2020 was flawed and that the marks awarded to her were influenced by the fact that she was pregnant.  I am not satisfied that the respondent has demonstrated that this was not the case.  I have reached this conclusion for the following reasons:

1.       The interviewers placed undue emphasis on the complainant’s “performance” at the interview to the detriment of a proper consideration of her answers to the competency questions.

2.       The complainant was perceived to be nervous, but the interviewers did not intervene to test that assumption.

3.       Candidates who were younger, more competitive and “more in tune” with competency interviews were considered to be better performers than the complainant, who has longer service and is therefore, older than many of the successful candidates.

4.       The reference to the successful candidates as “competitive,” “younger” and “more in tune” leads me to conclude that these attributes were more highly rated than 10 years of solid experience of a woman pregnant with her second child.

5.       The marking of the interviews notes was not carried out at the end of each interview, creating a temporal distance from the answers given by candidates to the questions asked and leaving the interviewers to rely on their recollection of the candidates’ performance.

6.       No person independent of An Garda Síochána was on the interview board.

Based on these conclusions, I find that, contrary to section 6(2A) of the Employment Equality Act 1998, the complainant was discriminated against on the gender ground. 

I learned from the respondent’s submission that, on the date of this hearing, 222 Gardaí were attached to the station in Dundalk, of which 28 are Detective Gardaí, 26 men and two women.  In total, 40 female Gardaí are stationed in Dundalk, comprising 18% of the Gardaí assigned there.  Less than 1% are in the role of Detective.  I know from the report of the superintendent who conducted the CPSA review that this is a concern for An Garda Síochána, and I understand that action is being taken to address this gender imbalance.  I hope that this action will have a positive outcome for the complainant. 

I decide that this complaint of discrimination on the ground of gender is well founded.  In accordance with my powers of redress under section 82 of the Employment Equality Act 1998, I order the respondent to pay the complainant compensation of €10,000 for the effect of that discrimination.  This award is for the infringement of the complainant’s statutory rights and is not subject to deductions for PAYE, PRSI or USC.

Discrimination, gender, pregnancy