Dunne v The Irish Prison Service Kelly v The Irish Prison Service Quinnlivan v The Irish Prison Service Onyemekeihia v The Irish Prison Service Moran v The Irish Prison Service

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Costello
• Judgment Date: 06 February 2019
• Neutral Citation: [2019] IECA 26
• Date: 06 February 2019
• Docket Number: Record Nos. 2017 194 2017 195 2017 196 2017 197 2017 198

[2019] IECA 26

THE COURT OF APPEAL

Costello J.

Irvine J.

Costello J.

Kennedy J.

Record Nos. 2017 194

2017 195

2017 196

2017 197

2017 198

BETWEEN/

AISLING DUNNE, DAMIAN KELLY, AOIFE QUINNLIVAN, PETER ONYEMEKEIHIA

AND

RONAN MORAN

APPELLANTS/APPLICANTS

- AND -

THE IRISH PRISON SERVICE

RESPONDENT/RESPONDENT

- AND -

COMMISSIONER FOR PUBLIC SERVICE APPOINTMENTS

NOTICE PARTY

Judicial review – Employment – Prison officers – Applications for promotion – Award of marks in respect of Higher Certificate in Custodial Care – Appeal against refusal of leave

Facts: The appellants had applied for promotion to a newly created role within the Irish Prison Service. Certain officers held Higher Certificates in Custodial Care, whereas others did not due to their longer service. The appellants contended that the scoring in respect of the HCCC was unfair and sought leave for judicial review. Leave was refused in an earlier hearing of the High Court (see [2017] IEHC 118), and the appellants now sought to challenge that refusal

Held by the Court of Appeal that the appeal would be dismissed, and the cross appeal allowed. The appellants had failed to establish breach of any legitimate expectation in how the promotion scheme had been operated, or that they had acted to their detriment. The cross appeal in respect of Ord 84 r 21 would be granted.

JUDGMENT of Ms. Justice Costello delivered on the 6th day of February 2019

1 This is an appeal by the appellants from an Order dated the 28th March 2017 of the High Court (Eagar J.) refusing the appellants” applications for leave to apply for relief by way of judicial review. The trial judge's reasons are contained in his judgment delivered on the 27th February 2017, [2017] IEHC 118. I would refuse the appeal of the appellants and allow the cross appeal of the respondent against this judgment for the reasons set out below.

Selection of candidates to be Work Training Officers

2 In May 2013 the Irish Prison Service, the respondent, ran an internal promotion competition to enable prison officers to apply for the newly created position of Work Training Officer. There were eight separate skill sets in services, crafts, catering, integrated sentence management, environment, physical education, industrial skills and computers/printing. The competition was to be carried out pursuant to Circular 02/2013 (‘the circular’). The circular stated that the process would be conducted in accordance with the Commission for Public Service Appointments Code of Practice for Appointments of Positions to the Civil Service and Public Service (‘the code’). The circular set out the criteria that would apply in respect of the applications for the positions. Panels would be established for each of the eight skill sets. Candidates were required to identify the panel or panels for which they wish to apply. The selection process was competitive and merit based. Candidates who met the required standard for each skill set would be placed on a panel in order of merit and considered for appointment in that order. Placement on a panel did not confer any right of appointment to the position of Work Training Officer. The panels were to have a life of eighteen months and any vacancy that arose within the 18 month period would be offered in turn to the candidates on the panel in order of merit.

3 The candidates were required to complete a job application form. This included identifying any qualifications they held that they considered were relevant to the position of Work Training Officer in respect of whichever panel(s) they applied for. Marks were awarded based on the relevance of the candidates” qualifications. The application forms were assessed by five assessors in order to produce a short list of candidates for interview. Candidates had to reach a qualifying mark of 115 out of an available 200 marks in order to be short listed for interview.

4 The respondent received 394 applications of whom 254 candidates were short listed for interview. These lists were sent to the Governors of the various institutions and posted on staff notice boards.

5 There were a number of requests for a review of the short listing process pursuant to s. 7 of the code. Arising from those requests, the respondent decided to carry out a review of all candidates who did not reach the qualifying mark to be called for an interview. As a result of that review, a further 24 candidates were called for interview.

6 The interview scoring sheet listed six headings under which candidates were to be assessed. These were initiative, managing and developing people, commitment to quality results, inter personal communication, relevant experience and relevant qualifications. There was a maximum of 50 marks available under each of these competencies, save for relevant experience where 100 marks were available. The total marks available was 350: 50% was deemed the qualifying mark to be included on the panel, i.e. 175 out of the 350.

7 Marks were to be awarded for the highest relevant qualification submitted by each candidate. A Junior Certificate or equivalent earned 15 marks, Leaving Certificate: 20 marks, Advanced Higher Certificate (Level 6) attracted 25 marks, Ordinary Bachelor Degree (Level 7) attracted 30 marks, Honours Bachelor Degree or Higher Diploma (Level 8): 35 marks, Masters Degree or Post Graduate Diploma (Level 9): 40 marks and Doctorate Degree or Higher Doctorate (Level 10): 50 marks.

8 Difficulties arose in relation to the awarding of marks in respect of relevant qualifications, in part by reason of the changes introduced to the training afforded to new recruit prison officers. In 2006 the respondent introduced a requirement that all prison officers recruited to the respondent undertake a Higher Certificate in Custodial Care, a Level 6 qualification, as part of their training. The HCCC programme is a bespoke course developed for the respondent. Its aim is to provide a professional development framework for a recruit prison officer and to provide recruit prison officers with a range of skills and competencies so they can carry out their duties in a professional manner. The course is two years in length and comprises eleven subject modules undertaken over the course of four semesters. Prior to that, recruits were not afforded a Level 6 training.

9 In or about 2007 the respondent entered into an agreement with the Prison Officers Association (‘the POA’) to avoid disadvantaging prison officers recruited prior to the introduction of the HCCC by reason of the fact that they would not have a HCCC.

10 At the commencement of the selection process for the position of Work Training Officer the respondent confirmed to the POA that the HCCC did not form part of the scoring system as it was not envisaged that it would be a relevant qualification for the skills of the new Work Training Officer positions. The short listing and interview boards were advised that the HCCC should not be considered as relevant to the role. The interview boards were informed that marks should only be awarded for relevant qualifications.

11 On the 12th August 2013, following the conclusion of the interview process, the respondent issued the details of the panels of those persons who had been successful in the competition. Thereafter the POA raised an issue regarding the manner in which the HCCC was considered in both the short listing and interview stages. In effect, in the course of both the short listing stage and the interview process, assessors and interview boards accepted the HCCC as a relevant qualification in respect of some of the Work Training Officer positions. 25 marks had been awarded to those candidates who successfully established that HCCC was relevant to the position for which they had applied and certain applicants received 25 marks simply because they held the HCCC without having to establish its relevance.

12 The respondent immediately sought guidance from the Commissioner for Public Service Appointments, (‘the Commission’) on how best to deal with the issues arising. The details of the advice were not established in evidence. The respondent consulted with the POA. On the 15th August 2013 the respondent withdrew the panels pending an investigation into the issue of the HCCC, in particular relating to the appropriateness of awarding marks to those candidates who held the HCCC.

13 In order not to disadvantage prison officers who had been recruited prior to 2006 and in accordance with the agreement which had been reached with the POA in 2007, the respondent decided to award a minimum of 25 marks to all candidates in respect of the qualifications criteria whether or not they held a HCCC.

14 This decision had the effect of increasing the marks of candidates who only held qualifications of FETAC Level 5 or lower. Candidates with relevant qualifications of Level 6 or above had already been awarded at least 25 marks in respect of those qualifications. Where candidates had scored lower than 25 marks with their qualifications, their mark was raised to 25. As a consequence of this decision an additional 15 candidates were called to interview who had not previously been short listed.

15 On the 23rd August 2013 the respondent issued a notice to all prison officers including all candidates explaining the situation. The notice provided inter alia:-

‘To ensure that all candidates are treated in the same manner, the Irish Prison Service is revising the marks awarded at both short listing and interview stages as follows:…

- All candidates will receive a minimum of 25 marks at shortlisting stage to ensure all candidates are treated the same with regard to whether or not they hold the Higher Certificate in Custodial Care (HCCC)…

- With regard to the interview stage, all candidates will also be credited with a minimum of 25 marks, to bring all candidates up to the equivalent of the qualifying mark...