CORRECTION ORDER
ISSUED PURSUANT TO SECTION 88 OF THE EMPLOYMENT EQUALITY ACT 1998
This Order corrects the original Decision ADJ-00041243 issued on 16th of August 2024 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041243
| Complainant | Respondent |
Anonymised Parties | A Civil Servant | A Named Government Department |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00052553-001 | 02/09/2022 |
Date of Adjudication Hearing: 17/05/2024
Workplace Relations Commission Adjudication Officer: Orla Jones
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised.
The respondent’s representative requested that the decision be anonymised due to the fact that the within claims contain serious and potentially damaging allegations against a witness of the respondent. These allegations assert "a lack of integrity and unethical, dishonest and immoral behaviour" and maliciousness on the part of the witness. Having considered the application, I have exercised my discretion to anonymise the decision.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. The parties were given an opportunity to cross examine the evidence
Background:
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 2nd of September 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 has also submitted claims of victimization in respect of alleged adverse treatment following her appeal of the interview panel’s decision.
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 lodged these claims against two respondents, the Recruitment service who ran the competition and against the within respondent, a named Government Department by whom she was employed. The claims were heard together in a joint hearing with both respondents in attendance.
A third complaint was also submitted by the complainant on the 17th of April 2024 against the within respondent, 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 named Government Department disputes that it is the correct respondent for claims in respect of the promotion competition submitting that it is the Recruitment Service who is the correct respondent to claims in respect of the promotion competition. The Recruitment service accepts that it is the correct respondent to claims in respect of the promotion competition.
The complainant submits that the named Government Department is also a respondent to the claim 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 first named respondent, the Recruitment Service. I am thus satisfied that the within respondent a named Government Department is not the correct respondent to the claims of discrimination in respect of the promotion competition.
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.
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Summary of Complainant’s Case:
The complainant has lodged the same complaints against both respondents. 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 who is the second named and current respondent to the claims and the recruitment service against whom a separate claim was lodged. 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 recruitment service and first named 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 Recruitment service on foot of making an appeal in relation to the competition. The complainant also submits that she was victimised by the Recruitment service 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 Mr. A himself 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 in 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 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 the second named respondent, a named Government Department The allegations relate to: Being excluded from meetings Being asked to prepare a briefing note when Mr. A had the up-to-date info and had not shared it with the complainant Having a large section of work taken away and reassigned to another unit and then returned to the Unit, without proper notification Comments made by Mr. A in a meeting with EU officials referring to the complainant as – ‘sneaky’ –and stating that there was ‘a place for you in Russia’ . |
Summary of Respondent’s Case:
The respondent a named Government Department submits that is not an appropriate respondent in respect of functions which were transferred to the first named respondent, the Recruitment service. The respondent submits that the matter relates to a claim that the complainant was discriminated against by the Recruitment service and a named Government Department 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 that she was victimised. The Complainant also has a related complaint against the Recruitment service in which she has outlined her claim of discrimination. 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 respondent representative 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 submits that the first named respondent, the Recruitment service 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 first named Respondent, the Recruitment Service 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 first named respondent, the Recruitment Service, 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 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 recruitment service representative in relation to the interview and grade the interviewee under various headings. The first named respondent, the Recruitment service 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 first named respondent submits that Both the members of the panel and the recruitment service 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 Recruitment service 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 recruitment service representative. The Interview The respondent recruitment service 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 first named 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 complainant has made allegations of victimisation against both respondents. In response to these allegations of victimisation the within respondent a Named Government Department submits that The Complainant could have asked Mr. A to brief her on the meeting with the professor so that she could prepare the briefing note for onward transmission to the Minister. Furthermore, the Complainant states in the complaint form that she took it upon herself to write the briefing note. The Complainant has acknowledged that the Respondent has staffing constraints. It is good practice for the Respondent's resources to be deployed in the most efficient way possible, and this would require management of resources by Mr. A; and Insight can be gained by examining that which the Complainant takes issue with. The Complainant is arguably excessively bothered by, and too quick to interpret, some interactions as slights, or indeed an example of victimisation. For example, to say that receipt of the email from the first named respondent at 17:39 was "a deliberate slap in the face" and that "in my view, there is no other reasonable explanation for their double standard other than victimisation", are conclusions which are not reasonable or fair. For the above reasons, and those to be offered (including in evidence), the Respondent submits that the within complaints are without merit and should be dismissed. |
Findings and Conclusions:
As outlined above in the Background to this complaint I am satisfied that the within respondent is not the correct respondent to the claims of discrimination in respect of the interview process and that the correct respondent to those claims is the Recruitment service. These claims are dealt with in the related decision in respect of ADJ-00041241. The issues for decision by me now are whether or not the complainant was discriminated against by the within 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 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 Outside of the allegations in respect of the interview process which I have dealt with in my decision in respect of ADJ-00041241 the complainant did not adduce any evidence of discrimination by the within respondent, a named Government Department on grounds of age, gender, family status or civil status. Accordingly I am satisfied that the complainant was not discriminated against by the within 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 first named respondent the Recruitment service following notification that she was not successful at interview. The complainant in outlining the incidents of adverse treatment on which she seeks to ground her claims of victimisation against the within respondent a Named Government Department 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 a Named Government Department amount to victimisation. I am satisfied that the within respondent A named Government Department is the correct respondent to these allegations. The complainant at the hearing outlined these allegations as follows. The complainant advised the hearing that following the interview and subsequent appeal process she was subjected to adverse treatment by Mr. A when work she had been doing was delegated elsewhere. The complainant stated that she felt like she was being side-lined. The complainant added that she should have been told in person that certain legislation work was going to another section and not just emailed out of the blue to be told the work was transferring to another section Mr. A in response to this stated that he had a finite set of resources and that he had to make decisions in respect of how to best allocate those resources. In another example, the complainant stated that Mr. A held a meeting with a Professor from Trinity and the complainant wasn’t invited to the meeting but a week later the complainant’s section was asked to draft a briefing note for the Minister of State which included among other things the matters discussed at the meeting with the Professor but Mr. A never mentioned that he was the person with the most up to date information. The complainant submits that she then contacted the Professor seeking an update only to be told that she had met with Mr. A the previous week. The complainant submits that while it is Mr. A’s decision and within his gift to leave her out of meetings, it is victimisation to ask her to write a note about something when she has been deliberately left out of meetings and not subsequently briefed or informed about what transpired at them – it felt to her as if she was being deliberately set up to fail. Mr. A in response to this at the hearing stated that there was no conscious exclusion of the complainant from the meeting Mr. A stated that he had a finite set of resources and can only bring certain people to certain meetings that the decision regarding who would attend the meeting with the Professor was a question of the allocation of resources. Mr. A at the hearing stated that he should however have passed the relevant information onto the complainant but stated that he was extremely busy and that sometimes things fall through the cracks. Mr. A apologised for this. Additionally, the complainant outlined an incident in respect of comments made by Mr. A at a meeting which they both attended with EU officials on the 3 May 2022. The complainant submits that at the meeting, the EU Commission wanted to take a specific action. She stated that she made a number of suggestions that could address the issue – smart, strategic solutions that the EU representative was very pleased with and wanted to follow up with her on. Mr. A exclaimed that they were good ideas. He then followed up by saying my proposal was ‘sneaky’ and then made a comment that ‘there is a place for you in Russia. The complainant submits that this was an overwhelmingly negative comment in its timing and in the context of the current war. Witness for the respondent Mr. A advised the hearing that he had made these comments in jest commending the complainant for coming up with the idea. Mr. A advised the hearing that his style of management is that not everything has to be serious, and you have to have a level of enjoyment in your work. Mr. A added that it upset him to read that the complainant was now making a complaint in this regard as he stated that the complainant had at the time treated it as a joke herself and knew that there was no maliciousness involved. Having considered the totality of the evidence adduced in respect of the allegations of victimisation I am satisfied that the allegations outlined do not meet the test outlined in the Barrett case and that the incidents outlined do not amount to adverse treatment of the complainant by the within respondent, a named Government Department on foot of her appeal to the first named respondent, the Recruitment Service, in respect of the PO competition outcome. 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 |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I 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. |
Dated: 16th of August 2024
Workplace Relations Commission Adjudication Officer: Orla Jones
Key Words:
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ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041243
| Complainant | Respondent |
Anonymised Parties | A Civil Servant | A Named Government Department |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00052553-001 | 02/09/2022 |
Date of Adjudication Hearing: 31/05/2024
Workplace Relations Commission Adjudication Officer: Orla Jones
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by Mr. A General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised.
The respondent’s representative requested that the decision be anonymised due to the fact that the within claims contain serious and potentially damaging allegations against a witness of the respondent. These allegations assert "a lack of integrity and unethical, dishonest and immoral behaviour" and maliciousness on the part of the witness. Having considered the application, I have exercised my discretion to anonymise the decision.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. The parties were given an opportunity to cross examine the evidence
Background:
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 2nd of September 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 has also submitted claims of victimization in respect of alleged adverse treatment following her appeal of the interview panel’s decision.
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 lodged these claims against two respondents, the Recruitment service who ran the competition and against the within respondent, a named Government Department by whom she was employed. The claims were heard together in a joint hearing with both respondents in attendance.
A third complaint was also submitted by the complainant on the 17th of April 2024 against the within respondent, 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 named Government Department disputes that it is the correct respondent for claims in respect of the promotion competition submitting that it is the Recruitment Service who is the correct respondent to claims in respect of the promotion competition. The Recruitment service accepts that it is the correct respondent to claims in respect of the promotion competition.
The complainant submits that the named Government Department is also a respondent to the claim 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 first named respondent, the Recruitment Service. I am thus satisfied that the within respondent a named Government Department is not the correct respondent to the claims of discrimination in respect of the promotion competition.
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.
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Summary of Complainant’s Case:
The complainant has lodged the same complaints against both respondents. 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 who is the second named and current respondent to the claims and the recruitment service against whom a separate claim was lodged. 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 recruitment service and first named 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 Recruitment service on foot of making an appeal in relation to the competition. The complainant also submits that she was victimised by the Recruitment service 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 Mr. A himself 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 in 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 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 the second named respondent, a named Government Department The allegations relate to: Being excluded from meetings Being asked to prepare a briefing note when Mr. A had the up-to-date info and had not shared it with the complainant Having a large section of work taken away and reassigned to another unit and then returned to the Unit, without proper notification Comments made by Mr. A in a meeting with EU officials referring to the complainant as – ‘sneaky’ –and stating that there was ‘a place for you in Russia’ . |
Summary of Respondent’s Case:
The respondent a named Government Department submits that is not an appropriate respondent in respect of functions which were transferred to the first named respondent, the Recruitment service. The respondent submits that the matter relates to a claim that the complainant was discriminated against by the Recruitment service and a named Government Department 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 that she was victimised. The Complainant also has a related complaint against the Recruitment service in which she has outlined her claim of discrimination. 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 respondent representative 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 submits that the first named respondent, the Recruitment service 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 first named Respondent, the Recruitment Service 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 first named respondent, the Recruitment Service, 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 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 recruitment service representative in relation to the interview and grade the interviewee under various headings. The first named respondent, the Recruitment service 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 first named respondent submits that Both the members of the panel and the recruitment service 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 Recruitment service 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 recruitment service representative. The Interview The respondent recruitment service 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 first named 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 complainant has made allegations of victimisation against both respondents. In response to these allegations of victimisation the within respondent a Named Government Department submits that The Complainant could have asked Mr. A to brief her on the meeting with the professor so that she could prepare the briefing note for onward transmission to the Minister. Furthermore, the Complainant states in the complaint form that she took it upon herself to write the briefing note. The Complainant has acknowledged that the Respondent has staffing constraints. It is good practice for the Respondent's resources to be deployed in the most efficient way possible, and this would require management of resources by Mr. A; and Insight can be gained by examining that which the Complainant takes issue with. The Complainant is arguably excessively bothered by, and too quick to interpret, some interactions as slights, or indeed an example of victimisation. For example, to say that receipt of the email from the first named respondent at 17:39 was "a deliberate slap in the face" and that "in my view, there is no other reasonable explanation for their double standard other than victimisation", are conclusions which are not reasonable or fair. For the above reasons, and those to be offered (including in evidence), the Respondent submits that the within complaints are without merit and should be dismissed. |
Findings and Conclusions:
As outlined above in the Background to this complaint I am satisfied that the within respondent is not the correct respondent to the claims of discrimination in respect of the interview process and that the correct respondent to those claims is the Recruitment service. These claims are dealt with in the related decision in respect of ADJ-00041241. The issues for decision by me now are whether or not the complainant was discriminated against by the within 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 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 Outside of the allegations in respect of the interview process which I have dealt with in my decision in respect of ADJ-00041241 the complainant did not adduce any evidence of discrimination by the within respondent, a named Government Department on grounds of age, gender, family status or civil status. Accordingly I am satisfied that the complainant was not discriminated against by the within 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 first named respondent the Recruitment service following notification that she was not successful at interview. The complainant in outlining the incidents of adverse treatment on which she seeks to ground her claims of victimisation against the within respondent a Named Government Department 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 a Named Government Department amount to victimisation. I am satisfied that the within respondent A named Government Department is the correct respondent to these allegations. The complainant at the hearing outlined these allegations as follows. The complainant advised the hearing that following the interview and subsequent appeal process she was subjected to adverse treatment by Mr. A when work she had been doing was delegated elsewhere. The complainant stated that she felt like she was being side-lined. The complainant added that she should have been told in person that certain legislation work was going to another section and not just emailed out of the blue to be told the work was transferring to another section Mr. A in response to this stated that he had a finite set of resources and that he had to make decisions in respect of how to best allocate those resources. In another example, the complainant stated that Mr. A held a meeting with a Professor from Trinity and the complainant wasn’t invited to the meeting but a week later the complainant’s section was asked to draft a briefing note for the Minister of State which included among other things the matters discussed at the meeting with the Professor but Mr. A never mentioned that he was the person with the most up to date information. The complainant submits that she then contacted the Professor seeking an update only to be told that she had met with Mr. A the previous week. The complainant submits that while it is Mr. A’s decision and within his gift to leave her out of meetings, it is victimisation to ask her to write a note about something when she has been deliberately left out of meetings and not subsequently briefed or informed about what transpired at them – it felt to her as if she was being deliberately set up to fail. Mr. A in response to this at the hearing stated that there was no conscious exclusion of the complainant from the meeting Mr. A stated that he had a finite set of resources and can only bring certain people to certain meetings that the decision regarding who would attend the meeting with the Professor was a question of the allocation of resources. Mr. A at the hearing stated that he should however have passed the relevant information onto the complainant but stated that he was extremely busy and that sometimes things fall through the cracks. Mr. A apologised for this. Additionally, the complainant outlined an incident in respect of comments made by Mr. A at a meeting which they both attended with EU officials on the 3 May 2022. The complainant submits that at the meeting, the EU Commission wanted to take a specific action. She stated that she made a number of suggestions that could address the issue – smart, strategic solutions that the EU representative was very pleased with and wanted to follow up with her on. Mr. A exclaimed that they were good ideas. He then followed up by saying my proposal was ‘sneaky’ and then made a comment that ‘there is a place for you in Russia. The complainant submits that this was an overwhelmingly negative comment in its timing and in the context of the current war. Witness for the respondent Mr. A advised the hearing that he had made these comments in jest commending the complainant for coming up with the idea. Mr. A advised the hearing that his style of management is that not everything has to be serious, and you have to have a level of enjoyment in your work. Mr. A added that it upset him to read that the complainant was now making a complaint in this regard as he stated that the complainant had at the time treated it as a joke herself and knew that there was no maliciousness involved. Having considered the totality of the evidence adduced in respect of the allegations of victimisation I am satisfied that the allegations outlined do not meet the test outlined in the Barrett case and that the incidents outlined do not amount to adverse treatment of the complainant by the within respondent, a named Government Department on foot of her appeal to the first named respondent, the Recruitment Service, in respect of the PO competition outcome. 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 |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I 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. |
Dated: 16th of August 2024
Workplace Relations Commission Adjudication Officer: Orla Jones
Key Words:
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