Complainant

Respondent

Anonymised Parties

A Civil Servant

A Recruitment Service

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-00052430-001

26/08/2022

These claims arise out of the complainant’s application for promotion to the grade of Principal Officer and an interview which took place on 12 January 2022.  The complainant was notified on 19th January 2022 that she was unsuccessful at interview and so she appealed this outcome and was notified on 2 March 2022 that her appeal was unsuccessful.  The complainant asserts that the reason she was unsuccessful at interview is due to her gender age, family status and civil status.    This claim was filed on 26th of August 2022.   I am satisfied that the 6-month cognisable period runs from the date of receipt of the appeal outcome i.e. 2nd of March 2022.

The complainant alleges that she was discriminated against by the within respondent on grounds of gender, age, civil status & family status in relation to promotion and getting a job when she was unsuccessful at interview for a position of Principal Officer.  The complainant at the time of interview was employed in the civil service as an Assistant Principal.   The complainant claims that to her knowledge the successful candidate was younger, male, unmarried and without children.   The complainant also alleges that she was victimised following the lodging of an appeal of the interview panel’s decision.

The complainant has also lodged these claims against a Named Government Department due to the fact that her manager Mr. A sat on the interview panel in the interview process run by the within respondent.   The claims were heard together in a joint hearing with both respondents in attendance.   The claims in respect of A Named Government Department are dealt with in a separate decision under Adj-00041243.

A third complaint was also submitted by the complainant on the 17th of April 2024 against A Named Government Department, but this claim was withdrawn prior to the hearing of same.

The complainant has made allegations of discrimination and victimisation against both respondents.

The within respondent, a Recruitment service does not dispute that it is the correct respondent to claims in respect of the promotion competition but submits that it is not the correct respondent to the victimisation claims as it is not the complainant’s employer.   The within respondent has responsibility for recruitment and promotion competitions within the civil service and so claims that it could not be responsible for alleged adverse treatment of the complainant post the interview process as it did not have an employment relationship with the complainant. 

The complainant submits that a Named Government Department is also a respondent to the claims of discrimination, and she is basing this on the fact that the complainants line manager, Mr. A was a member of the interview panel for the competition in question.

Having considered this matter I note that Mr. A while on the Interview Panel was not acting in his role as an employee of A Named Government Department but that he was acting in his capacity as an Interviewer for the Recruitment Service and therefore I am satisfied that the claim of discrimination in respect of the interview/competition is appropriate to the within respondent, the Recruitment Service.  I am thus satisfied that the within respondent is the correct respondent to the claims of discrimination.

I advised the parties to the hearing at the outset that I would hear all of the evidence and assign responsibility for any incidents of discrimination and or victimisation as appropriate.   

The complainant submits that she began work in her current position as an Assistant Principal on 27 February 2017.   At that time, she worked to a Principal Officer (PO) and her second line manager was Mr. A, Head of Section.

 The complainant submits that the PO, Mr. O transferred out of the Division on 30 April 2021 and there was a PO vacancy between 30 April 2021 and 23 May 2022. During that period the complainant submits that she  was either assigned the work by Mr. A , or assumed the work of the former PO,  with Mr. A’s knowledge.

The complainant applied for a  PO competition in autumn 2021 and was interviewed on 12 January 2022.  The complainant was notified on 19th January 2022 that she was not successful in the competition.  The complainant submits that this amounts to discrimination on the grounds of gender, age, marital/civil status, and family status by her Employer and the recruiter the current respondent.   

The complainant submits that her comparator Mr. M was placed 4th on the panel and that he had told her that he had worked 2.5 years as an Assistant Principal and had a total of 5 years’ experience in the Public Sector.   The complainant adds that as far as she is aware he is not married, has no children and is younger than her. He is male.  By contrast, the complainant is female, older than Mr M, married but separated and has children.    In addition, at the time of the interview she had 5.5 years’ experience as an Assistant Principal, with over 19 years’ experience in the Civil Service.

The complainant following the interview sought a Section 7 review of the decision on the grounds that the respondent did not take into account all of the information and the decision was not fair, consistent with the evidence or transparent.  A  key feature of her argument is that Mr. A who sat on the interview board had in his capacity as her manager in the Department, delegated to her almost all of the PO duties between April 2021 to the date of the interview in January 2022 and had made no complaint that she had not carried out the role effectively.  

The complainant appealed the interview outcome, and her appeal was denied by letter dated 2 March 2022 as the board claimed she did not meet the standard in leadership and strategic direction.

The complainant submits that she was given the response to her application under Section 7 at 17.39 on 2 March 2022 9 minutes after close of business.   In this letter refusing her appeal, the respondent outlined the manner in which a conflict of interest or a potential conflict of interest is addressed.  The complainant then appealed to the CPSA under Section 8 and over two months later they advised her that they would not be investigating her complaint. 

The complainant also submits that she was victimised by her Employer, a named Government Department, and vicariously by the within respondent on foot of making an appeal in relation to the competition.

The complainant also submits that she was victimised by the within respondent by the late reply to her appeal on 2 March 2022 which fell outside of business hours.  The reply was sent at 17.39 i.e. 9 minutes after close of business.   The complainant submits that on the face of it, this may seem like an innocent delay, but this organisation literally excludes people from competitions based upon tardiness or non-adherence to timescales set down by them. They set down the deadline of 2 March 2022 and they issued the letter outside of their stated business hours on that date – it was issued at 17:39.  The complainant submits that this ‘was a deliberate slap in the face’ when she had complied with all their deadlines throughout the competition.

The complainant submits that in May 2022 the AHCPS union was working on her behalf to have the period from April 2021 to 23 May 2022 formally recognised by the Department as a period of acting up to PO grade for the purpose of an acting up allowance.   During the course of this assessment the complainant claims to have been told by her union rep that her second line manager, Mr. A was claiming to have undertaken a large proportion of the PO duties which were being assessed for the purposes of the acting up allowance.   

The complainant submits that Mr. A s claim that he had been doing the bulk of the PO work and his declaration of no conflict of interest at the time of the PO Competition cannot co-exist and suggests to her that there was a conflict of interest that was not declared by Mr. A and consequently a real potential for bias against her compared to other candidates. 

In addition, the complainant submits that the letter of 2 March 2022 refusing her appeal states specifically that each member of the interview board confirmed that there was no conflict of interest.  It is the complainant’s contention, that  Mr. A should have declared a conflict of interest.    She submits that Mr. A confirmed there was no conflict of interest during the appeal process and also during the review by the CPSA.   The complainant in this regard submits that  the gravity of what Mr. A has done cannot be overstated – she submits that this action could fall within the class of ‘malicious’ and ‘intentional.’  The complainant submits that Mr. A should have declared a conflict of interest and that his failure to do so  demonstrated a lack of probity in respect of the interview board member.   The complainant submits that  it may be argued that the failure to declare a conflict of interest in this case constitutes a lack of integrity and unethical, dishonest and immoral behaviour and may be classed as a breach of the Civil Service Code of Standards and Behaviour.

In summary the complainant submits that there was -  A bias against her in the sense that she was treated differently to the other candidates which she believes to be based on her age, gender, marital / civil status and family status.   She also submits that there was a consistent pattern of ongoing behaviour from Mr. A that indicates a bias against her which she believes to be based on her  age, gender, marital/civil status and family status.

The complainant also submits that there were other incidents of victimisation.  The details submitted in this regard relate to allegations that certain actions were taken and comments made by Mr. A in his capacity as her manager during the course of her day-to-day work with her parent Department i.e. a Named Government Department.    I am satisfied that the correct respondent to these allegations is the second named respondent, a named Government Department and accordingly they are dealt with in a separate decision which deals with the claim against the second named respondent.

In its written submission, the respondent described its role in the management of recruitment in the civil and public service.  

This matter relates to a claim that the complainant was discriminated against by the Respondent in a Principal Officer competition it ran and for which the Complainant interviewed.

The type of discrimination the Complainant claims occurred is on the grounds of gender, civil status, family status and age. The Complainant also claims she was victimised.

The Complainant also has a related complaint against the a named Government Department with whom she was employed as an Assistant Principal at the time of the competition.    For the avoidance of any doubt, the Respondent does not accept any of the characterisations of events by the Complainant unless explicitly, manifestly and unambiguously accepted.  

The respondent submits that this is in part necessary by virtue of the uncertainty in, and level of effort required to try and comprehended, the complaint form.   Furthermore, the Respondent categorically rejects that it has played any role in discriminating against or victimising the Complainant. Nor is the Respondent aware of any information which would amount to same.

The within respondent submits in the first place that the WRC does not have jurisdiction to hear this matter owing to omissions by the Complainant with respect to procedural requirements as follows

The respondent submits that the Complainant has not provided sufficient evidence which could support a prima facie case that she was discriminated against; and  the Respondent is not and was not the Complainant's employer and thus cannot victimise the Complainant under the relevant legislation.

It is further submitted by the Respondent that, the complainant has not complied with Section 77 (7) and Section 77(8) of the Employment Equality Act, 1998 – 2015, which requires that a complainant seeking redress in respect of a complaint of discrimination by the Civil Service Commissioners, in the course of recruitment and selection process, shall, in the first instance, refer the claim for redress to the Commissioners themselves and submit that a claim cannot be made to the WRC until either the Commissioners have failed to give a decision or the Complainant is not satisfied with the decision. It was further submitted that, under the Public Services Management (Recruitment and Appointments) Act, 2004, Section 77 (7) of the Employment Equality Acts was amended to replace the Civil Service Commissioners by the “holder of a recruitment licence under the Public Services Management (Recruitment and Appointments) Act, 2004”.

The respondent submits that the panel in respect of the recruitment for the role to which this Complaint relates had three members, along with a representative from the respondent recruitment service. The structure of interview panels means that no single member of the panel can automatically sway the outcome of the interview process. After an interview, the panel has a discussion (with respect to this complaint — "the Discussion") in the presence of the respondent  representative in relation to the interview and grade the interviewee under various headings.

The respondent submits that its representative to the panel has two roles. First, to oversee the interview process and the subsequent discussion between the panel members to ensure compliance with the CPSA Code of Practice for Appointment to Positions in the Civil and Public Service ("the Guidelines"). Second, to keep an official written record of the interview process in which they are involved. For the avoidance of any doubt, this written record is not intended to be a transcript of the interview. The written record is only an aide-mémoire. If necessary, the respondent representative will interrupt the interview and/or the discussion between the panel members to address any issues that arise in respect of same, including non-compliance with the Guidelines. No such issues arose in the Interview or the Discussion between panel members which warranted or mandated the respondent representative to interrupt proceedings.

The respondent submits that Both the members of the panel and the respondent representative are briefed on the appropriate process and procedures in the recruitment process. The panel are not provided with any information in respect of the age, gender, civil status or family status of any of the applicants interviewed. Panel members and the respondent representative are instructed not to discuss any matter which could be in breach or perceived to be in breach of equality legislation and therefore, know that any question or considerations in respect of same during the interview or the subsequent discussion is not permitted. No issue in respect of same arose in respect of the Interview or the Discussion.

In the case of some interview panels, an interviewee is known by a member of the panel.   As a matter of routine, the panel member who knows the interviewee will speak last in the discussion between the panel members. This routine was followed in respect of the discussion between the panel members, with Mr. A speaking last.

 The outcome of the interview is a collective decision of the board, with each member having an equal say in the decision. The Respondent can go into evidence in relation to the fact that the interview process was conducted in accordance with best practice, and the experience of the interviewers and respondent  representative.

The Interview

The respondent submits that no outside information can be brought into the interview/evaluation space. This means that the panel does not take into account information which is not conveyed to them in the interview. Panel members are also not permitted to use their experience of an interviewee to fill any potential gaps in answers on behalf of interviewees.

In the notes of the panel in relation to the Interview, the Complainant is noted as having made reference to her experience in working with Mr. A in her answer(s) to question(s), without expanding on or providing sufficient detail in respect of same. Unfortunately, this approach inevitably led to a situation where the panel does not have comprehensive information which it is permitted to take into account in its scoring of  the Complainant. Mr. A was not permitted be swayed (either way) by the Complainant's experience, including that which she referred to in her answer, beyond the extent to which information about said experience was conveyed by the Complainant in the interview. While the other two panel members do not have any/sufficient information in respect of same as Mr. A could not provide information in respect of same.

The Complainant was permitted to add anything at the end of the Interview and choose not to do so, except apologising for technical difficulties in the internet connection at the start of the interview which would not have a bearing on the outcome of the interview either way.

The Comparator and Outcome of the Interview Process

The Respondent submits that there is no merit in comparing the Complainant to her chosen comparator ("the Comparator") in the manner set out in the complaint form.

Whilst maintaining that there was no discrimination in the recruitment process, the Respondent submits that the Complainant cannot be successful in this complaint by merely choosing an individual who they claim is male, younger, single and with less experience in the public sector who ranked higher than them in the interview process. Ranking higher can be simply explained by that individual preforming better in the interview.  Where the Complaint in respect of discrimination relies upon the coincidence of descriptive adjectives used to categorise the selected Comparator and to thereafter allege discrimination, same is insufficient, without merit and should be dismissed, including under section 77A.  The goal of the interview panel is to find the best candidate based on performance in interview combined with having regard to the written application.

The respondent submits that the complainant has not complied with Section 77 (7) and Section 77(8) of the Employment Equality Act, 1998 – 2015, which requires that a complainant seeking redress in respect of a complaint of discrimination by the Civil Service Commissioners, in the course of recruitment and selection process, shall, in the first instance, refer the claim for redress to the Commissioners themselves.

 According to the Respondent, Section 77 (8) of the Acts, confirms that a claim cannot be made to the WRC until either the Commissioners have failed to give a decision, or the Complainant is not satisfied with the decision.

It was further submitted that, under the Public Services Management (Recruitment and Appointments) Act, 2004, Section 77 (7) of the Employment Equality Acts was amended to replace the Civil Service Commissioners by the “holder of a recruitment licence under the Public Services Management (Recruitment and Appointments) Act, 2004”.   It was submitted by the Respondent, that the Complainant in the present case has failed to  seek redress from the Respondent under any of the sections of the Code of Practice. 

 It was further submitted that, whilst the Complainant did appeal the decision to the respondent and later to the CPSA, she did not exhaust all avenues available under the provisions of the Code of Practice.   In support of this the respondent referred to the case of an Garda Siochåna v. Murphy EDA 129, in which the Labour Court held:

"It seems to the Court that the obligation imposed by s. 77(7) encapsulates three essential requirements. Firstly, there must be a communication from the Complainant to the Commissioner. Secondly, the communication must assert that the Complainant suffered identifiable discrimination under the Act. Thirdly the communication must contain a request or demand for redress in respect of the discrimination alleged. "

It is the Respondent’s contention that, as the Complainant in the within case has failed to exhaust all avenues, the WRC has no jurisdiction to hear her complaint brought under Section 77 of the Acts.

The complainant advised the  hearing that she had sought to appeal the decision and raised the matter of alleged discrimination post the interview.

The complainant advised the hearing that she had appealed the decision and received an outcome letter from the respondent denying her appeal on the 2nd of March 2022.

The complainant stated that she also submitted a complaint form to the CPSA dated 9 March 2022, and finally she wrote to the respondent by email on 25th  of March 2022 stating  "I believe that I was the subject of discrimination in the above-mentioned competition, and I require details to support my claim to the Workplace Relations Commission.   I therefore request that you please provide a breakdown of the following categories by gender, age and family status".   The complainant added that the respondent mischaracterised this notification from her and decided to treat it as an FOI request.

The complainant advised the hearing that she appealed to the CPSA under Section 8 and over two months later they responded  advising her that they would not be investigating her complaint.   The complainant also added that the respondent information booklet sets out the appeal process to be followed but does not mention the requirements under section 77(7) of the Employment Equality Act.

The respondent submits that the documentation lodged by the Complainant in respect of her complaint against the respondent contains three documents which it submits are not sufficient to establish the WRC's jurisdiction in this Complaint and which the respondent submits are not sufficient to discharge the requirement set out in the ‘Murphy test’.

Having examined the evidence in this regard I find it wholly reasonable that the Complainant would have concluded that the process was at an end and that she was, therefore, entitled to progress her complaint to the WRC.    I am therefore satisfied that I have the appropriate jurisdiction to consider the within claims.  

The issues for decision by me now are whether or not the complainant was discriminated against by the respondent on grounds of gender age family status and civil status, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in relation to the interview which took place in January 2022 and whether she was victimised by the respondent contrary to section 74(2).

In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “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) …..”

Section 6(2) of the Acts defines the discriminatory grounds of age, gender, family status and civil status.

Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of age, gender, family status or civil status.

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.   It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.

Discrimination

The complainant in outlining her case advised the hearing that at the time of the interview she had 5.5 years’ experience as an Assistant Principal, with over 19 years’ experience in the Civil Service she stated that her comparator Mr. M was placed 4th on the panel and that he had told her that he had worked 2.5 years as an Assistant Principal and had a total of 5 years’ experience in the Public Sector.   The complainant adds that as far as she is aware he is not married, has no children and is younger than her. He is male.  The complainant advised the hearing that 4 men had applied for the position and 3 of them had interviewed for the position and all three were successful while she was the only female and was not successful.    The complainant advised the hearing that  a member of the interview panel Mr. A had worked with her prior to the interview and that she felt that the reason she did not succeed at  the interview was that he did not give her a fair interview.    

The complainant advised the hearing that Mr. A did not ask her enough questions in respect of the competency on which he was examining her.  She stated that that he had not asked her enough questions and she felt that Mr. A seemed disinterested, the complainant stated at the hearing that it may have been because he was too familiar with the work area having worked there himself.

Witness for the respondent and member of the interview panel Mr. A advised the hearing that the Complainant has an impressive CV but did not perform well on the day of the interview.  Mr.  A advised the hearing that the complainant did not elaborate on her answers when he asked her questions and he stated that she gave short answers which did not display the competency well enough to score highly.

Mr. A advised the hearing that the complainant was aware that he had a knowledge of the work area  she was using to demonstrate the competency, but he stated that she did not provide enough detail to score highly in the competency.   He stated that the complainant in the interview referred to the fact that she had worked with Mr. A.    The complainant at the hearing stated that Mr. A knew the work area and knew the work involved.

The complainant stated that Mr. A had not spent enough time asking her questions.  She was advised that roughly the same amount of time was spent by each panel member on their allocated topic.   Mr. A added that the complainant was given another chance at the end of his questions when he asked if she had anything to add but she did not take the opportunity to say any more.   The complainant advised the hearing that Mr. A should have asked her more questions to elucidate further information in relation to the competency if he felt she had not fully displayed the competency.

 Mr. A advised the hearing that he could only score the complainant on the information she provided at the interview, and he could not use his knowledge of the work area or her work to fill in gaps as interview board members cannot rely on any external information only what is adduced  during the interview.

The respondent advised the hearing that the  panel in respect of the recruitment for the role to which this Complaint relates had three members, along with a representative from the respondent. The respondent advised the hearing that after an interview, the panel has a discussion in the presence of the respondent representative in relation to the interview and grade the interviewee under various headings.

Witness for the respondent Ms. B outlined to the hearing how she sat on the interview panel as a the respondent representative and that her role was to ensure that the panel adhered to fair procedures.  She stated that it was also her role to brief the panel on equality legislation and on fair procedures.

Ms. B added  that the Board makes all decisions in relation to candidates as a unit and added  that no Board member has the power to sway others as all members of the panel are equal.

Ms. B advised the hearing that in cases where an interviewee is known to a panel member then that panel member has to speak last in order that the first two members can discuss their scores and conclusions on the interviewee firstly.  Ms. B added that this process was followed in the present case as the complainant was known to Mr. and so Mr. A spoke last in the discussion between panel member on the complainant’s performance at interview.

Ms. B also stated that Mr. A like all potential interview panel members would have been asked to sign a declaration of no conflict of interest.  When asked at the hearing if she had seen this form signed by Mr. A the witness Ms. B answered that she had not seen any of the signed forms, but it emerged that this was not her area of responsibility, she was merely notified that this step had been followed and that no conflict had been declared. 

Witness for the respondent Ms. C outlined how each of the proposed members of the interview panel including Mr. A were asked to indicate whether they had any conflict of interest as regards participating in the interview panel and that none was declared.    When asked at the hearing for Mr. A’s signed form the witness Ms. C stated that she herself had not been in the role at the time and so had not been the person responsible for the form.  The respondent confirmed that it did not have the relevant signed declarations with them at the hearing and at the request of the AO undertook to provide same to the Commission post the hearing.  The relevant forms and associated emails and correspondence were provided to the Commission post the hearing and it was evident from same that Mr. A had been provided with the form in advance of the interview process and had returned the signed form in advance of the interview.      Witness for the respondent Ms. C  stated that if a potential interviewer declares a conflict of interest with a particular interviewee then the respondent makes the decision that they should not sit on the interview panel for that person.

Witness for the respondent Ms,. C advised the hearing that examples of conflicts of interest the respondent witness cited being a close family member of an interviewee or a working relationship where there was a pre-existing grievance.  

Ms C stated that it would not be unusual for colleagues or line managers to sit on interview panels where they had worked with one or more of the interviewees.  Ms. C stated that in the area in which the complainant and Mr A worked was quite small and niche and so it would not be at all unusual that a member of the interview panel and the interviewee would have  worked together.

The complainant at the hearing stated that Mr. A should have declared a conflict of interest and should not have sat on the interview panel as she submitted that a few months later in May 2022 she became aware that Mr. A while acting in another capacity as her line manager had blocked her application for an acting up allowance claiming that he himself had carried out the bulk of duties which the complainant was claiming to have done on an acting up basis since the departure of the other PO Mr. O.   The complainant had applied for an acting up allowance in respect of the additional duties she had taken on during the PO vacancy left by Mr. O.   It emerged that the complainant has since been granted 50% of the acting up allowance in recognition of the proportion of PO duties she was deemed to be carrying out.

The complainant stated that it became clear to her after applying for the allowance that  Mr. A considered himself to have taken on the bulk of the additional duties instead of the complainant.  The complainant became aware of this after a meeting her union official told her this following a meeting in May 2022.   The complainant submits that Mr. A must have thought the same at the time of the interview back in January 2022 and surmised that he must thus have thought that she was lying about carrying out certain additional duties.  This the complainant submits could or would have led Mr. A to believe that she was lying in her example given to the interview panel and if this was the case then she submits that Mr. A should have recused himself from the interview panel and should have declared a conflict of interest.

Mr. A  outlined to the hearing the circumstances surrounding the complainant’s application for an acting up allowance.  The complainant had been working as an AP in the division when a PO post became vacant.  The complainant advised the hearing that the PO had not been replaced and that she had continued to do his work as well as her own as the post was vacant and the section at the time was working on an important piece of legislation.   The complainant advised the hearing that she had applied for an acting up allowance but was refused as Mr. A had claimed to be carrying out some of the additional PO duties himself.     The complainant stated that an agreement was later reached whereby she was awarded 50% of the acting up allowance based on a determination that she had been carrying out a proportion of the PO duties.

Mr. A stated that this assessment for acting up allowance was completely unrelated to the interview process and had no bearing on how he treated the complainant at interview, it also took place after the interview.   Mr A also stated that many examples used by candidates in interview  involve work carried out collectively between themselves and other members of staff as he stated that civil servants do not operate alone and so he advised the hearing that it is not unusual for interviewees to exaggerate their own part in a project for the purpose of displaying a particular competency for interview purposes. 

The complainant at the hearing suggested that Mr. A if he thought an interviewee was claiming credit for work they had not done should raise this at the interview.  Mr. A in response to this stated that it would be completely inappropriate for him to draw on any outside information other than what is before him in the interview and that it certainly would not be appropriate to raise an issue like that with a candidate during the interview.

Mr. A stated that the interviewer may sometimes be aware of such circumstances but the marks at interview are awarded based on the performance at interview and how well the interviewee displays the competency and answers questions relating to that competency.  Mr. A added that silos do not exist in the civil service and that all work is interlinked and interrelated and so there is bound to be an overlap in the duties carried out between staff working in a particular area or on a particular project.

The respondent witness Ms B advised the hearing that no interview panel member is allowed to draw on outside knowledge of any individual or any of the examples cited and she stated that very often the examples used to display a competency can be used by more than one individual.

In responding to the allegation that he had blocked the complainant’s application for an allowance Mr. A outlined that the application was discussed at a meeting between himself and the assistant  Secretary and that the complainant in her application for the allowance had claimed to have been carrying out the duties of a PO the duties which had been carried out by the previous incumbent of the other PO post.    Mr. A stated that in discussing the matter with the A Sec he had to go through the list of duties and affirm whether or not they were being carried out by the complainant.   Mr, A stated that while going through the list he noted that he himself was carrying out some of the additional PO duties on the list such as PMDS which the complainant had no responsibility for.  Mr A also outlined that the complainant was doing a great job but that she was carrying out AP duties with some PO duties added in.  He stated that it was he who carried out the PMDS function and it was he who was in the Bull Pen with the Minister when the legislation was before the houses of the Oireachtas.  Mr. A added that the complainant had been a great support to him at the time.    Mr. A he carried out those duties stated that these duties as they were part of the PO role and that not the complainant.  Mr A added that the complainant had taken on a lot of Mr. O’s duties but that some the duties in question were AP duties which Mr. O had been carrying out and were not appropriate to PO level.

Mr. A stated that the assessment for the PO acting up allowance had taken place months after the interview and so he could not possibly have been influenced by matters which emerged in the assessment of the claimant for the acting up allowance when it had not even taken place until after the interviews.

Mr. A stated that his assessment in relation to the duties he was carrying out in the assessment for acting up was purely confined to the application for acting up which he outlined as being a very stringent process .  He added that the complainant had since been successful in her application by securing 50% of the acting up allowance which is reflective of the proportion of PO duties she had taken on.

I note from the evidence adduced that the complainant’s arguments centred on the assertion that Mr. A had blocked her in her application for the acting up allowance and that he must thus at the time of interview have been of the opinion that she was claiming credit for duties which she was not carrying out some of which were being carried out by Mr. A himself.

I note that the complainant also asserts that Mr. A did not give her an opportunity to adequately expand on or to illustrate her competency by not asking her enough questions at interview.  I also note Mr. A s response in this regard in respect of the level of detail provided by the complainant when asked about this competency.

Having considered the evidence adduced and while bearing in mind that the within complaint is a claim of discrimination on grounds of age gender civil status and family status I am satisfied that the complainant has failed to point to any discriminatory treatment or questions in the course of the interview or in Mr. A’s treatment of her.  

When  considering the evidence adduced by the Complainant I must  take into consideration the Respondent’s contrary evidence, when determining whether the burden of proof should shift to the respondent.   In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that:-

“….the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”

In  Graham Anthony & Company Limited v Mary Margetts  EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

Having considered the evidence from both sides in this matter in line with Dyflin Publications Limited, I conclude that the Complainant has made mere assertions without providing the primary facts to show that either age gender family status or civil status were a determining factor in her unsuccessful application for promotion.

 I am thus satisfied from my examination of the totality of the evidence adduced that the complainant was not discriminated against by the respondent on grounds of age gender family status or civil status.

Victimisation:

Section 74(2) of the Acts provides:

 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) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(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 or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The key elements of victimisation provided for in section 74(2) of the Acts can be summarised as follows:

·       The employee had taken action of a type referred to at section 74(2) of the Acts

·       The employee was subjected to adverse treatment by the Respondent, and

·       The adverse treatment was in reaction to the protected action having been taken by the employee.

·       There must be a causal connection between the taking of proceedings and any alleged treatment by the employer.

The Complainant in the present case in outlining the protected act sought to assert that the protected act was the letter of appeal which she sent to the respondent post interview, and she advised the hearing that the adverse treatment by the within respondent was the sending of the response to her letter of appeal which she received 9 minutes outside of business hours on the date of reply.  The complainant advised the hearing that the letter in question was sent to her by email at 5.39 pm on the 2nd of March 2022 when it should have been sent by 5.30pm i.e. by close of business the respondents normal working day.

The complainant states that this may seem minor, but she adds that it is very significant when one considers that the respondent is an organisation which penalises people for missing deadlines in respect of recruitment competitions.

I am satisfied from the totality of the evidence adduced that this does not amount to victimisation of the complainant by the respondent contrary to section 74(2) of the EEA. 

The complainant has also submitted that the act of sending her the email 9 minutes outside of its normal business hours also amounts to discrimination by the within respondent.   I am satisfied that  this does not amount to discrimination on any of the grounds listed by the complainant.

The complainant in outlining the other incidents of adverse treatment on which she seeks to ground her claim of victimisation submits that certain actions taken, and comments made by Mr. A in his capacity as her manager during the course of her day-to-day work with the second named respondent also  amount to victimisation.   I am satisfied that the correct respondent to these allegations is the second named respondent A Named Government Department, against whom a the claim was also lodged and accordingly these allegations are dealt with in a separate decision dealing with the claims against the second named respondent A Named Government Department.

Accordingly, I am satisfied from the totality of the evidence adduced in respect of these matters that the complainant was not discriminated against by the within respondent in accordance with Section 6 and contrary to Section 8 of the Employment Equality Acts 1998-2015 and that she was not victimised by the respondent contrary to Section 74 (2) of those Acts.

I am satisfied from the totality of the evidence adduced in respect of these matter that the complainant was not discriminated against by the within respondent in accordance with Section 6 and contrary to Section 8 of the Employment Equality Acts 1998-2015 and that she was not victimised by the respondent contrary to Section 74 (2) of those Acts.

Complainant

Respondent

Anonymised Parties

A Civil Servant

A Recruitment Service

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-00052430-001

26/08/2022

These claims arise out of the complainant’s application for promotion to the grade of Principal Officer and an interview which took place on 12 January 2022.  The complainant was notified on 19th January 2022 that she was unsuccessful at interview and so she appealed this outcome and was notified on 2 March 2022 that her appeal was unsuccessful.  The complainant asserts that the reason she was unsuccessful at interview is due to her gender age, family status and civil status.    This claim was filed on 26th of August 2022.   I am satisfied that the 6-month cognisable period runs from the date of receipt of the appeal outcome i.e. 2nd of March 2022.

The complainant alleges that she was discriminated against by the within respondent on grounds of gender, age, civil status & family status in relation to promotion and getting a job when she was unsuccessful at interview for a position of Principal Officer.  The complainant at the time of interview was employed in the civil service as an Assistant Principal.   The complainant claims that to her knowledge the successful candidate was younger, male, unmarried and without children.   The complainant also alleges that she was victimised following the lodging of an appeal of the interview panel’s decision.

The complainant has also lodged these claims against a Named Government Department due to the fact that her manager Mr. A sat on the interview panel in the interview process run by the within respondent.   The claims were heard together in a joint hearing with both respondents in attendance.   The claims in respect of A Named Government Department are dealt with in a separate decision under Adj-00041243.

A third complaint was also submitted by the complainant on the 17th of April 2024 against A Named Government Department, but this claim was withdrawn prior to the hearing of same.

The complainant has made allegations of discrimination and victimisation against both respondents.

The within respondent, a Recruitment service does not dispute that it is the correct respondent to claims in respect of the promotion competition but submits that it is not the correct respondent to the victimisation claims as it is not the complainant’s employer.   The within respondent has responsibility for recruitment and promotion competitions within the civil service and so claims that it could not be responsible for alleged adverse treatment of the complainant post the interview process as it did not have an employment relationship with the complainant. 

The complainant submits that a Named Government Department is also a respondent to the claims of discrimination, and she is basing this on the fact that the complainants line manager, Mr. A was a member of the interview panel for the competition in question.

Having considered this matter I note that Mr. A while on the Interview Panel was not acting in his role as an employee of A Named Government Department but that he was acting in his capacity as an Interviewer for the Recruitment Service and therefore I am satisfied that the claim of discrimination in respect of the interview/competition is appropriate to the within respondent, the Recruitment Service.  I am thus satisfied that the within respondent is the correct respondent to the claims of discrimination.

I advised the parties to the hearing at the outset that I would hear all of the evidence and assign responsibility for any incidents of discrimination and or victimisation as appropriate.   

The complainant submits that she began work in her current position as an Assistant Principal on 27 February 2017.   At that time, she worked to a Principal Officer (PO) and her second line manager was Mr. A, Head of Section.

 The complainant submits that the PO, Mr. O transferred out of the Division on 30 April 2021 and there was a PO vacancy between 30 April 2021 and 23 May 2022. During that period the complainant submits that she  was either assigned the work by Mr. A , or assumed the work of the former PO,  with Mr. A’s knowledge.

The complainant applied for a  PO competition in autumn 2021 and was interviewed on 12 January 2022.  The complainant was notified on 19th January 2022 that she was not successful in the competition.  The complainant submits that this amounts to discrimination on the grounds of gender, age, marital/civil status, and family status by her Employer and the recruiter the current respondent.   

The complainant submits that her comparator Mr. M was placed 4th on the panel and that he had told her that he had worked 2.5 years as an Assistant Principal and had a total of 5 years’ experience in the Public Sector.   The complainant adds that as far as she is aware he is not married, has no children and is younger than her. He is male.  By contrast, the complainant is female, older than Mr M, married but separated and has children.    In addition, at the time of the interview she had 5.5 years’ experience as an Assistant Principal, with over 19 years’ experience in the Civil Service.

The complainant following the interview sought a Section 7 review of the decision on the grounds that the respondent did not take into account all of the information and the decision was not fair, consistent with the evidence or transparent.  A  key feature of her argument is that Mr. A who sat on the interview board had in his capacity as her manager in the Department, delegated to her almost all of the PO duties between April 2021 to the date of the interview in January 2022 and had made no complaint that she had not carried out the role effectively.  

The complainant appealed the interview outcome, and her appeal was denied by letter dated 2 March 2022 as the board claimed she did not meet the standard in leadership and strategic direction.

The complainant submits that she was given the response to her application under Section 7 at 17.39 on 2 March 2022 9 minutes after close of business.   In this letter refusing her appeal, the respondent outlined the manner in which a conflict of interest or a potential conflict of interest is addressed.  The complainant then appealed to the CPSA under Section 8 and over two months later they advised her that they would not be investigating her complaint. 

The complainant also submits that she was victimised by her Employer, a named Government Department, and vicariously by the within respondent on foot of making an appeal in relation to the competition.

The complainant also submits that she was victimised by the within respondent by the late reply to her appeal on 2 March 2022 which fell outside of business hours.  The reply was sent at 17.39 i.e. 9 minutes after close of business.   The complainant submits that on the face of it, this may seem like an innocent delay, but this organisation literally excludes people from competitions based upon tardiness or non-adherence to timescales set down by them. They set down the deadline of 2 March 2022 and they issued the letter outside of their stated business hours on that date – it was issued at 17:39.  The complainant submits that this ‘was a deliberate slap in the face’ when she had complied with all their deadlines throughout the competition.

The complainant submits that in May 2022 the AHCPS union was working on her behalf to have the period from April 2021 to 23 May 2022 formally recognised by the Department as a period of acting up to PO grade for the purpose of an acting up allowance.   During the course of this assessment the complainant claims to have been told by her union rep that her second line manager, Mr. A was claiming to have undertaken a large proportion of the PO duties which were being assessed for the purposes of the acting up allowance.   

The complainant submits that Mr. A s claim that he had been doing the bulk of the PO work and his declaration of no conflict of interest at the time of the PO Competition cannot co-exist and suggests to her that there was a conflict of interest that was not declared by Mr. A and consequently a real potential for bias against her compared to other candidates. 

In addition, the complainant submits that the letter of 2 March 2022 refusing her appeal states specifically that each member of the interview board confirmed that there was no conflict of interest.  It is the complainant’s contention, that  Mr. A should have declared a conflict of interest.    She submits that Mr. A confirmed there was no conflict of interest during the appeal process and also during the review by the CPSA.   The complainant in this regard submits that  the gravity of what Mr. A has done cannot be overstated – she submits that this action could fall within the class of ‘malicious’ and ‘intentional.’  The complainant submits that Mr. A should have declared a conflict of interest and that his failure to do so  demonstrated a lack of probity in respect of the interview board member.   The complainant submits that  it may be argued that the failure to declare a conflict of interest in this case constitutes a lack of integrity and unethical, dishonest and immoral behaviour and may be classed as a breach of the Civil Service Code of Standards and Behaviour.

In summary the complainant submits that there was -  A bias against her in the sense that she was treated differently to the other candidates which she believes to be based on her age, gender, marital / civil status and family status.   She also submits that there was a consistent pattern of ongoing behaviour from Mr. A that indicates a bias against her which she believes to be based on her  age, gender, marital/civil status and family status.

The complainant also submits that there were other incidents of victimisation.  The details submitted in this regard relate to allegations that certain actions were taken and comments made by Mr. A in his capacity as her manager during the course of her day-to-day work with her parent Department i.e. a Named Government Department.    I am satisfied that the correct respondent to these allegations is the second named respondent, a named Government Department and accordingly they are dealt with in a separate decision which deals with the claim against the second named respondent.

In its written submission, the respondent described its role in the management of recruitment in the civil and public service.  

This matter relates to a claim that the complainant was discriminated against by the Respondent in a Principal Officer competition it ran and for which the Complainant interviewed.

The type of discrimination the Complainant claims occurred is on the grounds of gender, civil status, family status and age. The Complainant also claims she was victimised.

The Complainant also has a related complaint against the a named Government Department with whom she was employed as an Assistant Principal at the time of the competition.    For the avoidance of any doubt, the Respondent does not accept any of the characterisations of events by the Complainant unless explicitly, manifestly and unambiguously accepted.   

The respondent submits that this is in part necessary by virtue of the uncertainty in, and level of effort required to try and comprehended, the complaint form.   Furthermore, the Respondent categorically rejects that it has played any role in discriminating against or victimising the Complainant. Nor is the Respondent aware of any information which would amount to same.

The within respondent submits in the first place that the WRC does not have jurisdiction to hear this matter owing to omissions by the Complainant with respect to procedural requirements as follows

The respondent submits that the Complainant has not provided sufficient evidence which could support a prima facie case that she was discriminated against; and  the Respondent is not and was not the Complainant's employer and thus cannot victimise the Complainant under the relevant legislation.

It is further submitted by the Respondent that, the complainant has not complied with Section 77 (7) and Section 77(8) of the Employment Equality Act, 1998 – 2015, which requires that a complainant seeking redress in respect of a complaint of discrimination by the Civil Service Commissioners, in the course of recruitment and selection process, shall, in the first instance, refer the claim for redress to the Commissioners themselves and submit that a claim cannot be made to the WRC until either the Commissioners have failed to give a decision or the Complainant is not satisfied with the decision. It was further submitted that, under the Public Services Management (Recruitment and Appointments) Act, 2004, Section 77 (7) of the Employment Equality Acts was amended to replace the Civil Service Commissioners by the “holder of a recruitment licence under the Public Services Management (Recruitment and Appointments) Act, 2004”.

The respondent submits that the panel in respect of the recruitment for the role to which this Complaint relates had three members, along with a representative from the respondent recruitment service. The structure of interview panels means that no single member of the panel can automatically sway the outcome of the interview process. After an interview, the panel has a discussion (with respect to this complaint — "the Discussion") in the presence of the respondent  representative in relation to the interview and grade the interviewee under various headings.

The respondent submits that its representative to the panel has two roles. First, to oversee the interview process and the subsequent discussion between the panel members to ensure compliance with the CPSA Code of Practice for Appointment to Positions in the Civil and Public Service ("the Guidelines"). Second, to keep an official written record of the interview process in which they are involved. For the avoidance of any doubt, this written record is not intended to be a transcript of the interview. The written record is only an aide-mémoire. If necessary, the respondent representative will interrupt the interview and/or the discussion between the panel members to address any issues that arise in respect of same, including non-compliance with the Guidelines. No such issues arose in the Interview or the Discussion between panel members which warranted or mandated the respondent representative to interrupt proceedings.

The respondent submits that Both the members of the panel and the respondent representative are briefed on the appropriate process and procedures in the recruitment process. The panel are not provided with any information in respect of the age, gender, civil status or family status of any of the applicants interviewed. Panel members and the respondent representative are instructed not to discuss any matter which could be in breach or perceived to be in breach of equality legislation and therefore, know that any question or considerations in respect of same during the interview or the subsequent discussion is not permitted. No issue in respect of same arose in respect of the Interview or the Discussion.

In the case of some interview panels, an interviewee is known by a member of the panel.   As a matter of routine, the panel member who knows the interviewee will speak last in the discussion between the panel members. This routine was followed in respect of the discussion between the panel members, with Mr. A speaking last.

 The outcome of the interview is a collective decision of the board, with each member having an equal say in the decision. The Respondent can go into evidence in relation to the fact that the interview process was conducted in accordance with best practice, and the experience of the interviewers and respondent  representative.

The Interview

The respondent submits that no outside information can be brought into the interview/evaluation space. This means that the panel does not take into account information which is not conveyed to them in the interview. Panel members are also not permitted to use their experience of an interviewee to fill any potential gaps in answers on behalf of interviewees.

In the notes of the panel in relation to the Interview, the Complainant is noted as having made reference to her experience in working with Mr. A in her answer(s) to question(s), without expanding on or providing sufficient detail in respect of same. Unfortunately, this approach inevitably led to a situation where the panel does not have comprehensive information which it is permitted to take into account in its scoring of  the Complainant. Mr. A was not permitted be swayed (either way) by the Complainant's experience, including that which she referred to in her answer, beyond the extent to which information about said experience was conveyed by the Complainant in the interview. While the other two panel members do not have any/sufficient information in respect of same as Mr. A could not provide information in respect of same.

The Complainant was permitted to add anything at the end of the Interview and choose not to do so, except apologising for technical difficulties in the internet connection at the start of the interview which would not have a bearing on the outcome of the interview either way.

The Comparator and Outcome of the Interview Process

The Respondent submits that there is no merit in comparing the Complainant to her chosen comparator ("the Comparator") in the manner set out in the complaint form.

Whilst maintaining that there was no discrimination in the recruitment process, the Respondent submits that the Complainant cannot be successful in this complaint by merely choosing an individual who they claim is male, younger, single and with less experience in the public sector who ranked higher than them in the interview process. Ranking higher can be simply explained by that individual preforming better in the interview.  Where the Complaint in respect of discrimination relies upon the coincidence of descriptive adjectives used to categorise the selected Comparator and to thereafter allege discrimination, same is insufficient, without merit and should be dismissed, including under section 77A.  The goal of the interview panel is to find the best candidate based on performance in interview combined with having regard to the written application.

The respondent submits that the complainant has not complied with Section 77 (7) and Section 77(8) of the Employment Equality Act, 1998 – 2015, which requires that a complainant seeking redress in respect of a complaint of discrimination by the Civil Service Commissioners, in the course of recruitment and selection process, shall, in the first instance, refer the claim for redress to the Commissioners themselves.

 According to the Respondent, Section 77 (8) of the Acts, confirms that a claim cannot be made to the WRC until either the Commissioners have failed to give a decision, or the Complainant is not satisfied with the decision.

It was further submitted that, under the Public Services Management (Recruitment and Appointments) Act, 2004, Section 77 (7) of the Employment Equality Acts was amended to replace the Civil Service Commissioners by the “holder of a recruitment licence under the Public Services Management (Recruitment and Appointments) Act, 2004”.   It was submitted by the Respondent, that the Complainant in the present case has failed to  seek redress from the Respondent under any of the sections of the Code of Practice. 

 It was further submitted that, whilst the Complainant did appeal the decision to the respondent and later to the CPSA, she did not exhaust all avenues available under the provisions of the Code of Practice.   In support of this the respondent referred to the case of an Garda Siochåna v. Murphy EDA 129, in which the Labour Court held:

"It seems to the Court that the obligation imposed by s. 77(7) encapsulates three essential requirements. Firstly, there must be a communication from the Complainant to the Commissioner. Secondly, the communication must assert that the Complainant suffered identifiable discrimination under the Act. Thirdly the communication must contain a request or demand for redress in respect of the discrimination alleged. "

It is the Respondent’s contention that, as the Complainant in the within case has failed to exhaust all avenues, the WRC has no jurisdiction to hear her complaint brought under Section 77 of the Acts.

The complainant advised the  hearing that she had sought to appeal the decision and raised the matter of alleged discrimination post the interview.

The complainant advised the hearing that she had appealed the decision and received an outcome letter from the respondent denying her appeal on the 2nd of March 2022.

The complainant stated that she also submitted a complaint form to the CPSA dated 9 March 2022, and finally she wrote to the respondent by email on 25th  of March 2022 stating  "I believe that I was the subject of discrimination in the above-mentioned competition, and I require details to support my claim to the Workplace Relations Commission.   I therefore request that you please provide a breakdown of the following categories by gender, age and family status".   The complainant added that the respondent mischaracterised this notification from her and decided to treat it as an FOI request.

The complainant advised the hearing that she appealed to the CPSA under Section 8 and over two months later they responded  advising her that they would not be investigating her complaint.   The complainant also added that the respondent information booklet sets out the appeal process to be followed but does not mention the requirements under section 77(7) of the Employment Equality Act.

The respondent submits that the documentation lodged by the Complainant in respect of her complaint against the respondent contains three documents which it submits are not sufficient to establish the WRC's jurisdiction in this Complaint and which the respondent submits are not sufficient to discharge the requirement set out in the ‘Murphy test’.

Having examined the evidence in this regard I find it wholly reasonable that the Complainant would have concluded that the process was at an end and that she was, therefore, entitled to progress her complaint to the WRC.    I am therefore satisfied that I have the appropriate jurisdiction to consider the within claims.   

The issues for decision by me now are whether or not the complainant was discriminated against by the respondent on grounds of gender age family status and civil status, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in relation to the interview which took place in January 2022 and whether she was victimised by the respondent contrary to section 74(2).

In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “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) …..”

Section 6(2) of the Acts defines the discriminatory grounds of age, gender, family status and civil status.

Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of age, gender, family status or civil status.

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.   It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.

Discrimination

The complainant in outlining her case advised the hearing that at the time of the interview she had 5.5 years’ experience as an Assistant Principal, with over 19 years’ experience in the Civil Service she stated that her comparator Mr. M was placed 4th on the panel and that he had told her that he had worked 2.5 years as an Assistant Principal and had a total of 5 years’ experience in the Public Sector.   The complainant adds that as far as she is aware he is not married, has no children and is younger than her. He is male.  The complainant advised the hearing that 4 men had applied for the position and 3 of them had interviewed for the position and all three were successful while she was the only female and was not successful.    The complainant advised the hearing that  a member of the interview panel Mr. A had worked with her prior to the interview and that she felt that the reason she did not succeed at  the interview was that he did not give her a fair interview.    

The complainant advised the hearing that Mr. A did not ask her enough questions in respect of the competency on which he was examining her.  She stated that that he had not asked her enough questions and she felt that Mr. A seemed disinterested, the complainant stated at the hearing that it may have been because he was too familiar with the work area having worked there himself.

Witness for the respondent and member of the interview panel Mr. A advised the hearing that the Complainant has an impressive CV but did not perform well on the day of the interview.  Mr.  A advised the hearing that the complainant did not elaborate on her answers when he asked her questions and he stated that she gave short answers which did not display the competency well enough to score highly.

Mr. A advised the hearing that the complainant was aware that he had a knowledge of the work area  she was using to demonstrate the competency, but he stated that she did not provide enough detail to score highly in the competency.   He stated that the complainant in the interview referred to the fact that she had worked with Mr. A.    The complainant at the hearing stated that Mr. A knew the work area and knew the work involved.

The complainant stated that Mr. A had not spent enough time asking her questions.  She was advised that roughly the same amount of time was spent by each panel member on their allocated topic.   Mr. A added that the complainant was given another chance at the end of his questions when he asked if she had anything to add but she did not take the opportunity to say any more.   The complainant advised the hearing that Mr. A should have asked her more questions to elucidate further information in relation to the competency if he felt she had not fully displayed the competency.

 Mr. A advised the hearing that he could only score the complainant on the information she provided at the interview, and he could not use his knowledge of the work area or her work to fill in gaps as interview board members cannot rely on any external information only what is adduced  during the interview.

The respondent advised the hearing that the  panel in respect of the recruitment for the role to which this Complaint relates had three members, along with a representative from the respondent. The respondent advised the hearing that after an interview, the panel has a discussion in the presence of the respondent representative in relation to the interview and grade the interviewee under various headings.

Witness for the respondent Ms. B outlined to the hearing how she sat on the interview panel as a the respondent representative and that her role was to ensure that the panel adhered to fair procedures.  She stated that it was also her role to brief the panel on equality legislation and on fair procedures.

Ms. B added  that the Board makes all decisions in relation to candidates as a unit and added  that no Board member has the power to sway others as all members of the panel are equal.

Ms. B advised the hearing that in cases where an interviewee is known to a panel member then that panel member has to speak last in order that the first two members can discuss their scores and conclusions on the interviewee firstly.  Ms. B added that this process was followed in the present case as the complainant was known to Mr. and so Mr. A spoke last in the discussion between panel member on the complainant’s performance at interview.

Ms. B also stated that Mr. A like all potential interview panel members would have been asked to sign a declaration of no conflict of interest.  When asked at the hearing if she had seen this form signed by Mr. A the witness Ms. B answered that she had not seen any of the signed forms, but it emerged that this was not her area of responsibility, she was merely notified that this step had been followed and that no conflict had been declared. 

Witness for the respondent Ms. C outlined how each of the proposed members of the interview panel including Mr. A were asked to indicate whether they had any conflict of interest as regards participating in the interview panel and that none was declared.    When asked at the hearing for Mr. A’s signed form the witness Ms. C stated that she herself had not been in the role at the time and so had not been the person responsible for the form.  The respondent confirmed that it did not have the relevant signed declarations with them at the hearing and at the request of the AO undertook to provide same to the Commission post the hearing.  The relevant forms and associated emails and correspondence were provided to the Commission post the hearing and it was evident from same that Mr. A had been provided with the form in advance of the interview process and had returned the signed form in advance of the interview.      Witness for the respondent Ms. C  stated that if a potential interviewer declares a conflict of interest with a particular interviewee then the respondent makes the decision that they should not sit on the interview panel for that person.

Witness for the respondent Ms,. C advised the hearing that examples of conflicts of interest the respondent witness cited being a close family member of an interviewee or a working relationship where there was a pre-existing grievance.  

Ms C stated that it would not be unusual for colleagues or line managers to sit on interview panels where they had worked with one or more of the interviewees.  Ms. C stated that in the area in which the complainant and Mr A worked was quite small and niche and so it would not be at all unusual that a member of the interview panel and the interviewee would have  worked together.

The complainant at the hearing stated that Mr. A should have declared a conflict of interest and should not have sat on the interview panel as she submitted that a few months later in May 2022 she became aware that Mr. A while acting in another capacity as her line manager had blocked her application for an acting up allowance claiming that he himself had carried out the bulk of duties which the complainant was claiming to have done on an acting up basis since the departure of the other PO Mr. O.   The complainant had applied for an acting up allowance in respect of the additional duties she had taken on during the PO vacancy left by Mr. O.   It emerged that the complainant has since been granted 50% of the acting up allowance in recognition of the proportion of PO duties she was deemed to be carrying out.

The complainant stated that it became clear to her after applying for the allowance that  Mr. A considered himself to have taken on the bulk of the additional duties instead of the complainant.  The complainant became aware of this after a meeting her union official told her this following a meeting in May 2022.   The complainant submits that Mr. A must have thought the same at the time of the interview back in January 2022 and surmised that he must thus have thought that she was lying about carrying out certain additional duties.  This the complainant submits could or would have led Mr. A to believe that she was lying in her example given to the interview panel and if this was the case then she submits that Mr. A should have recused himself from the interview panel and should have declared a conflict of interest.

Mr. A  outlined to the hearing the circumstances surrounding the complainant’s application for an acting up allowance.  The complainant had been working as an AP in the division when a PO post became vacant.  The complainant advised the hearing that the PO had not been replaced and that she had continued to do his work as well as her own as the post was vacant and the section at the time was working on an important piece of legislation.   The complainant advised the hearing that she had applied for an acting up allowance but was refused as Mr. A had claimed to be carrying out some of the additional PO duties himself.     The complainant stated that an agreement was later reached whereby she was awarded 50% of the acting up allowance based on a determination that she had been carrying out a proportion of the PO duties.

Mr. A stated that this assessment for acting up allowance was completely unrelated to the interview process and had no bearing on how he treated the complainant at interview, it also took place after the interview.   Mr A also stated that many examples used by candidates in interview  involve work carried out collectively between themselves and other members of staff as he stated that civil servants do not operate alone and so he advised the hearing that it is not unusual for interviewees to exaggerate their own part in a project for the purpose of displaying a particular competency for interview purposes. 

The complainant at the hearing suggested that Mr. A if he thought an interviewee was claiming credit for work they had not done should raise this at the interview.  Mr. A in response to this stated that it would be completely inappropriate for him to draw on any outside information other than what is before him in the interview and that it certainly would not be appropriate to raise an issue like that with a candidate during the interview.

Mr. A stated that the interviewer may sometimes be aware of such circumstances but the marks at interview are awarded based on the performance at interview and how well the interviewee displays the competency and answers questions relating to that competency.  Mr. A added that silos do not exist in the civil service and that all work is interlinked and interrelated and so there is bound to be an overlap in the duties carried out between staff working in a particular area or on a particular project.

The respondent witness Ms B advised the hearing that no interview panel member is allowed to draw on outside knowledge of any individual or any of the examples cited and she stated that very often the examples used to display a competency can be used by more than one individual.

In responding to the allegation that he had blocked the complainant’s application for an allowance Mr. A outlined that the application was discussed at a meeting between himself and the assistant  Secretary and that the complainant in her application for the allowance had claimed to have been carrying out the duties of a PO the duties which had been carried out by the previous incumbent of the other PO post.    Mr. A stated that in discussing the matter with the A Sec he had to go through the list of duties and affirm whether or not they were being carried out by the complainant.   Mr, A stated that while going through the list he noted that he himself was carrying out some of the additional PO duties on the list such as PMDS which the complainant had no responsibility for.  Mr A also outlined that the complainant was doing a great job but that she was carrying out AP duties with some PO duties added in.  He stated that it was he who carried out the PMDS function and it was he who was in the Bull Pen with the Minister when the legislation was before the houses of the Oireachtas.  Mr. A added that the complainant had been a great support to him at the time.    Mr. A he carried out those duties stated that these duties as they were part of the PO role and that not the complainant.  Mr A added that the complainant had taken on a lot of Mr. O’s duties but that some the duties in question were AP duties which Mr. O had been carrying out and were not appropriate to PO level.

Mr. A stated that the assessment for the PO acting up allowance had taken place months after the interview and so he could not possibly have been influenced by matters which emerged in the assessment of the claimant for the acting up allowance when it had not even taken place until after the interviews.

Mr. A stated that his assessment in relation to the duties he was carrying out in the assessment for acting up was purely confined to the application for acting up which he outlined as being a very stringent process .  He added that the complainant had since been successful in her application by securing 50% of the acting up allowance which is reflective of the proportion of PO duties she had taken on.

I note from the evidence adduced that the complainant’s arguments centred on the assertion that Mr. A had blocked her in her application for the acting up allowance and that he must thus at the time of interview have been of the opinion that she was claiming credit for duties which she was not carrying out some of which were being carried out by Mr. A himself.

I note that the complainant also asserts that Mr. A did not give her an opportunity to adequately expand on or to illustrate her competency by not asking her enough questions at interview.  I also note Mr. A s response in this regard in respect of the level of detail provided by the complainant when asked about this competency.

Having considered the evidence adduced and while bearing in mind that the within complaint is a claim of discrimination on grounds of age gender civil status and family status I am satisfied that the complainant has failed to point to any discriminatory treatment or questions in the course of the interview or in Mr. A’s treatment of her.  

When  considering the evidence adduced by the Complainant I must  take into consideration the Respondent’s contrary evidence, when determining whether the burden of proof should shift to the respondent.   In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that:-

“….the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”

In  Graham Anthony & Company Limited v Mary Margetts  EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

Having considered the evidence from both sides in this matter in line with Dyflin Publications Limited, I conclude that the Complainant has made mere assertions without providing the primary facts to show that either age gender family status or civil status were a determining factor in her unsuccessful application for promotion.

 I am thus satisfied from my examination of the totality of the evidence adduced that the complainant was not discriminated against by the respondent on grounds of age gender family status or civil status.

Victimisation:

Section 74(2) of the Acts provides:

 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) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(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 or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The key elements of victimisation provided for in section 74(2) of the Acts can be summarised as follows:

·       The employee had taken action of a type referred to at section 74(2) of the Acts

·       The employee was subjected to adverse treatment by the Respondent, and

·       The adverse treatment was in reaction to the protected action having been taken by the employee.

·       There must be a causal connection between the taking of proceedings and any alleged treatment by the employer.

The Complainant in the present case in outlining the protected act sought to assert that the protected act was the letter of appeal which she sent to the respondent post interview, and she advised the hearing that the adverse treatment by the within respondent was the sending of the response to her letter of appeal which she received 9 minutes outside of business hours on the date of reply.  The complainant advised the hearing that the letter in question was sent to her by email at 5.39 pm on the 2nd of March 2022 when it should have been sent by 5.30pm i.e. by close of business the respondents normal working day.

The complainant states that this may seem minor, but she adds that it is very significant when one considers that the respondent is an organisation which penalises people for missing deadlines in respect of recruitment competitions.

I am satisfied from the totality of the evidence adduced that this does not amount to victimisation of the complainant by the respondent contrary to section 74(2) of the EEA. 

The complainant has also submitted that the act of sending her the email 9 minutes outside of its normal business hours also amounts to discrimination by the within respondent.   I am satisfied that  this does not amount to discrimination on any of the grounds listed by the complainant.

The complainant in outlining the other incidents of adverse treatment on which she seeks to ground her claim of victimisation submits that certain actions taken, and comments made by Mr. A in his capacity as her manager during the course of her day-to-day work with the second named respondent also  amount to victimisation.   I am satisfied that the correct respondent to these allegations is the second named respondent A Named Government Department, against whom a the claim was also lodged and accordingly these allegations are dealt with in a separate decision dealing with the claims against the second named respondent A Named Government Department.

Accordingly, I am satisfied from the totality of the evidence adduced in respect of these matters that the complainant was not discriminated against by the within respondent in accordance with Section 6 and contrary to Section 8 of the Employment Equality Acts 1998-2015 and that she was not victimised by the respondent contrary to Section 74 (2) of those Acts.

I am satisfied from the totality of the evidence adduced in respect of these matter that the complainant was not discriminated against by the within respondent in accordance with Section 6 and contrary to Section 8 of the Employment Equality Acts 1998-2015 and that she was not victimised by the respondent contrary to Section 74 (2) of those Acts.