Faulkner v Min Industry & Commerce

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 25 June 1993
• Neutral Citation: 1993 WJSC-HC 3511
• Docket Number: No. 742 Sp. Ct. 6/1992
• Court: High Court
• Date: 25 June 1993

1993 WJSC-HC 3511

THE HIGH COURT

No. 742 Sp. Ct. 6/1992

FAULKNER v. MIN INDUSTRY & COMMERCE

BETWEEN

MARY FAULKNER

PLAINTIFF

AND

THE MINISTER FOR INDUSTRY AND COMMERCE

DEFENDANT

Citations:

EMPLOYMENT EQUALITY ACT 1977 S21(4)

EMPLOYMENT EQUALITY ACT 1977 S2

EMPLOYMENT EQUALITY ACT 1977 S3

NORTH WESTERN HEALTH BOARD V MARTYN 1987 IR 565

O'KEEFFE V BORD PLEANALA 1992 ILRM 237

EMPLOYMENT EQUALITY ACT 1977 S21

Synopsis:

EMPLOYMENT

Terms

Promotion - Candidates - Assessment - Method - Unlawful discrimination - Allegation - Conflicting views of equality officer and Labour Court - Appeal from Labour Court - Appeal on point of law - Determination of Labour Court - Failure to state reasons - Employment Equality Act, 1977, s. 21 - (1992/742 Sp - Murphy J. - 25/6/93)

|Faulkner v. Minister for Industry and Commerce|

TRIBUNAL

Decision

Reasons - Statement - Absence - Employee - Promotion - Refusal - Alleged unlawful discrimination - Determination of Labour Court - Expression of that determination - Reasons for determination inferred from sources other that expression of determination - (1992/742 Sp - Murphy J. - 25/6/93)

|Faulkner v. Minister for Industry and Commerce|

G7"G7

Mr. Justice Murphy

The Plaintiff's claim herein is expressed as being for:-

1 The Plaintiff was appointed an Executive Officer in the Department of Industry and Commerce in April 1979. In 1981 she became eligible for promotion to the post of Higher Executive Officer. In April 1989 a vacancy existed in that post. The Plaintiff and two other eligible candidates were short-listed for the post. In terms of seniority the candidate best qualified was a Ms. Kearns. Ms. Faulkner was next and the only male candidate, who was the person ultimately appointed, was the least senior of the three.

2 The Plaintiff contended that the appointment of the male candidate was discriminatory on the grounds of sex and marital status contrary to Sections 2 and 3 of the Employment Equality Act1977.

3 The matter was investigated by an Equality Officer who, in her very detailed report dated the 14th of February 1991, concluded that Ms. Kearns (and not Ms. Faulkner) would have been promoted to the vacancy filled on the 17th of April 1989 but for discrimination on grounds of sex. In favour of Ms. Faulkner, the Equality Officer held that she should have received "a strong recommendation" for the position and that she was discriminated against in that regard. The Equality Officer recommended that she should be paid a sum of £600 by way of compensation in respect of distress, damage to confidence and injury of feeling suffered as a result of that discrimination.

4 The Equality Officer established that Ms. Faulkner's superior did not give a strong recommendation for her promotion. The only reason advanced for not doing so was that she was said to have, or have had a problem with her writing. The Equality Officer expressed the view that if she were satisfied, on objective grounds, that Ms. Faulkner's writing ability was poor and that she had no exceptional quality to counterbalance that shortcoming, she would consider this to be acceptable reason for not giving her the strong recommendation for promotion. It was in that context that the Equality Officer analysed the evidence in relation to the Plaintiff's alleged writing problem. She noted that in August 1985 an appraisal made by her superior indicated that her written expression was particularly good. However, through 86, 87 and 88 appraisals of her ability identified a writing problem. In February 1989 she was assessed as being "well qualified for promotion" and that assessment made no reference to writing difficulties. It was believed by the Respondents that by April 1989 her writing problem had been resolved but there was an anxiety to ensure that her improvement in that regard would be sustained. Analysing that evidence the Equality Officer commented as follows:-

"It would appear from the above details that there was an inexplicable disimprovement in Ms. Faulkner's writing ability between August “85 and December “86 and a subsequent inexplicable improvement."

5 In all of the circumstances she expressed her views on this issue which she had identified as being crucial in the following terms:-

"Consequently, on the balance of probabilities, I am not satisfied that the evidence supports the contention that there was a genuine and identifiable problem with Ms. Faulkner's writing."

6 It would have seemed to me that this was indeed a far-reaching decision. It would seem to me that it would necessarily imply dishonesty and indeed a malicious abuse of power by Ms. Faulkner's superior officers. However, the burden of making that onerous and difficult judgment fell to Ms. Lynch and it is not a matter for review by this Court. It is sufficient to note that Ms. Lynch made her judgment on that issue balancing the probabilities of conflicting claims. Clearly she recognised that there was an alternative, if less probable, conclusion.

7 The decision of the Equality Officer was appealed to the Labour Court. They had before them written submissions and, apparently, all of the material documentation. In addition, they had an oral hearing on the...