Complainant

Respondent

Parties

Gráinne  Dunne

Inland Fisheries Ireland

Representatives

 SIPTU

IBEC

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-00054644-001

23/01/2023

The complaint relates to alleged discrimination on the gender ground in respect of a competition for the post of assistant inspector within the respondent organisation. The Union contends that the complainant was discriminated against in contravention of Section 6(2)(a) and Section 8(1)(d) of the Employment Equality Acts 1998 – 2015. The complaint was submitted to the Workplace Relations Commission (WRC) on 23rd January 2023. The cognisable period of the complaint is 24th August 2022 – 23rd January 2023.

The complainant is employed by the respondent as a Fisheries Officer since 2005. The within complaint relates to a competition for the temporary role of assistant inspector in the Mobile Support Unit (MSU) which the complainant applied for in respect of the 2022 season.

Having expressed her interest in the assistant inspector role, the complainant was interviewed on 25th February 2022. While the complainant was successful for the role of fisheries officer in the MSU, she was not notified of an outcome in respect of the assistant inspector role. The complainant stated that she sought clarity from HR in respect of the assistant inspector role and notified HR of the repeated reference to her being referred to as the only “girl” who had applied for the role. The complainant stated that she received feedback from the chair of the interview board and was made aware that she had been unsuccessful at interview in respect of the two vacancies for the assistant inspector role. The complaint stated that she had not received any formal notification from HR that this was the case and pursued the matter directly. The complainant stated that in information received on 9th May 2022 via a Freedom of Information request, she noted that she was ranked third in respect of the assistant inspector position at interview. The complainant withdrew her interest in respect of the fisheries officer role and was subsequently made aware that there was a third candidate appointed to the role of assistant inspector.

The complainant stated that she met with the HR Manager on 15th December 2022 where she learned that the third position of assistant inspector had been made available as a male staff member who had not been successful at interview had voiced his dissatisfaction which resulted in the additional role becoming available. This, in turn, led to a substantive promotion for the staff member in question to the grade of assistant inspector in January 2023.

The complainant stated that she has been discriminated against on the grounds of gender, has sustained a financial loss in respect of May – September 2022 and has been disadvantaged in respect of progressing her career and gaining experience of the assistant inspector role.

The complainant’s representative cited the Labour Court Determination in O’Higgins v UCD (EDA131) in respect of the complainant satisfying the burden of proof under the legislation. In respect of discrimination regarding promotional opportunities, the complainant’s representative cited the cases of Micheline Sheehy Skeffington v National University of Ireland DEC-E2014- 078 and Yvonne O’Rourke v Minister for Defence ADJ-00007375. The complainant’s representative also cited the case of Van Colsen v Land Nordrhein – Westfalen [Case C-14/83, 1984} in respect of seeking compensation that was “adequate in relation to the damage sustained” in order for it to be “effective and that it has a deterrent effect”.

 Evidence

The complainant gave evidence by affirmation at the adjudication hearing. The complainant stated that she expressed an interest in working on the MSU in January 2022 and attended a dual-purpose interview for fisheries officer and assistant inspector on 25th February 2022. The complainant stated that she felt the interview was going well until she was referred to as a “girl”, which the complainant felt was offensive and discriminatory. The complainant stated that she was successful at interview in respect of the fisheries officer role but did not receive any notification on the assistant inspector role until she was told by the chair of the interview board in a feedback call on 4th April 2022. The complainant stated that she had contacted the HR Director who had told her she would be in contact in respect of the assistant inspector role but did not do so and the complainant submitted an FOI request in respect of the interview notes and marking sheets etc. The complainant stated that she withdrew her interest in respect of the fisheries officer role on 20th April 2022. The complainant stated that she then heard about the third assistant inspector role and at this stage she was aware that she had finished third at interview, yet it was a male colleague who was appointed to the role.

Cross examination

It was put to the complainant in cross examination that she was unable to provide any evidence that disputed the rankings of the interviewees and that all rankings were arrived at following a fair and transparent process. The witness confirmed that she was offered a role on the MSU and was informed of this on 4th March 2022 but stated it took 37 days to get a response in relation to her application for the assistant inspector role. In respect of the feedback, it was put to the complainant that management wanted to assist her in her career through the provision of feedback and the role in the MSU would have enhanced her career prospects, but it was the complainant herself who withdrew her interest in the fisheries officer role in the MSU.

The respondent contends that the complainant has not established a prima facie case of discrimination and that her complaint should be dismissed. The respondent cited the Labour Court Determination in Melbury Developments v Valpeters EDA09/17 in support of its position that the complainant has not established facts from which a presumption of discrimination can be drawn. The respondent also cited the case of the Southern Health Board v Teresa Mitchell DEE011 and Margetts v Graham Anthony & Company Limited EDA038 in support of its position that the complainant has not met the burden of proof as required by the legislation.

The respondent stated that the Mobile Support Unit (MSU) was set up in June 2021 to support local protection teams in addressing illegal fishing/ poaching activity during the summer months. The respondent stated that expressions of interest were sought for staffing the MSU by email dated 14th December 2021 and Interviews took place on 25th February 2022. The respondent stated that the two highest scoring applicants for the assistant inspector role were placed into that role and the remaining four applicants who had finished joint third were offered roles as fisheries officers on the MSU which the complainant withdrew from. In respect of the third assistant inspector role, it became clear in March 2022 that there would be availability issues amongst staff at assistant inspector level on the MSU for 2022. The respondent stated that the Inteview Board chair who is an inspector on the MSU chose who he felt was most suited to the role which was based on previous experience on the MSU and the level of successful court prosecutions previously on the MSU.

In respect of the comment that the complainant was the only “girl” applying for the role, the respondent stated that evidence will be provided on this issue by two members of the interview board.

The respondent stated that the complainant has applied for only 1 assistant inspector role out of 35 opportunities since 2019 and she herself withdrew from the opportunity to work on the MSU in 2022 after being successful at interview for the role of fisheries officer. On that basis the respondent does not accept that the complainant has been prevented from progressing her career.

The respondent concluded by submitting that the complainant has not established facts that she was treated less favourably based on her gender or at all in respect of the interview process for appointment to the MSU in 2022.

Evidence

Two members of the interview panel gave evidence by affirmation at the adjudication hearing.

The chair of the interview board, who is an inspector on the MSU, stated that the interviews for the roles held in February 2022 were informal and relaxed. In respect of the four people who finished in third place on 60%, the witness stated that initially there were only two roles at assistant inspector to be filled. The witness stated that a third vacancy became available unexpectedly due to issues relating to the unavailability of some MSU staff in 2022 and it was he himself who decided who should get the role. It was his view that he appointed the best candidate based on previous experience of working In the MSU as a fisheries officer as well as the level of successful court prosecutions of the successful candidate. The witness stated that the gender of the complainant was not a factor in his decision to fill the role. In respect of referring to the complainant as a “girl” or the “only girl to have applied for the role” the witness stated that he had no recollection of this. In cross examination the Union queried with the witness why a long-standing staff member would need to submit a freedom of information (FOI) request to obtain information on her interview. The Union also stated to the witness that, during the feedback call on 4th April 2022, the complainant had not been informed she had finished in joint third place in respect of the assistant inspector role.

In her evidence, a member of the interview board stated that she had no recollection of the comments that the chair of the board was alleged to have made in respect of the complainant being a “girl” or “the only girl to have applied for the role”. In cross examination, the union stated to the witness that it was unlikely that the complainant would send an email to HR highlighting that she had been referred to as a “girl” if it had not happened. It was also accepted by the witness that there was no provision within the respondent’s recruitment policy for joint rankings at interview.

The Applicable Law

Discrimination

Section 6(1) and (2) of the Employment Equality Acts, 1998-2015 provide as follows:

6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) to (i) not relevant

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

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

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the F156[Director General of the Workplace Relations Commission] under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Conclusions

I have considered the submissions and evidence of both parties. The complainant stated that she was discriminated against on the gender ground when a male colleague was placed into the role of assistant inspector in the respondent’s Mobile Services Unit (MSU) in 2022. The complainant also stated that she was referred to as a “being the only girl to have applied for the role” during the interview for the position in February 2022 and again during a feedback conversation in April 2022 about it being “great to have a girl on the team”. This comment was vey offensive to the complainant and at the adjudication hearing she clarified that she is woman in her forties and was never referred to as a “girl” during her adult life. The complainant contends that she was placed third at interview for the assistant inspector role and when a male colleague was placed into the third vacancy she was discriminated against on the grounds of gender. While the respondent argued that the complainant was joint third at interview, the Union stated that there is no provision in the respondent’s procedures for joint rankings at interview.

In relation to the “girl” comments, there is conflicting evidence on this issue. I accept the complainant’s evidence that this comment was made at interview as she raised the issue with HR very soon after the interview process had concluded. I also accept, on the balance of probabilities, that the comment about it being great to have a “girl” on the team was made. However, I do not find that these comments or the way they were made is indicative of a discriminatory attitude towards the complainant or that the complainant’s gender was the reason why she did not get appointed to the role. In respect of the additional role that became available, in my view, the chair of the interview board gave honest and cogent reasons why he made the choice he did.

In relation to the male who was placed into the role of assistant inspector, the Inspector stated that he himself had decided who would be placed in the post. The witness stated that it was not expected that a third assistant inspector would be required and in circumstances where there were four applicants who had finished in joint third place at interview, he had decided to appoint the applicant to the role who had the highest level of court prosecutions based on previous experience. The successful applicant had also previously worked on the MSU in 2021 whereas the three unsuccessful applicants had not and it is also the case that of the four applicants who finished in joint third place, there were three males and one female.

In all of the circumstances of the complaint, I accept the complainant’s evidence that a meeting with the HR Director in December 2022 resulted in the complainant pursuing her complaint based on the factual information that she says she received at the meeting. The complainant stated that she had finished third place at interview, yet she was told that it was a male who was placed in the position after he complained about not being appointed. As the complainant gave evidence in relation to these facts, it is for the respondent to prove that the complainant’s gender was not a factor in relation to the appointment. I am satisfied that the respondent gave honest and credible evidence in respect of the appointment of the male to the role who had previously worked on the MSU whereas the other three applicants had not, and the male appointed to the assistant inspector role had a high level of successful court prosecutions arising from his previous experience on the MSU. In conclusion, I find that the complainant was not discriminated against on the gender ground in respect of the assistant inspector role in the respondent organisation. Accordingly, the complaint fails.

For the reasons stated above, I find that the complaint of discrimination is not well founded.