Kelly v Irish Prison Service
| Jurisdiction | Ireland |
| Judge | Mr. Justice Eagar |
| Judgment Date | 27 February 2017 |
| Neutral Citation | [2017] IEHC 118 |
| Court | High Court |
| Docket Number | [2014 No. 454 J.R.] [2014 No. 511 J.R.] [2014 No. 514 J.R.] [2014 No. 571 J.R.] |
| Date | 27 February 2017 |
[2017] IEHC 118
THE HIGH COURT
JUDICIAL REVIEW
Eagar J.
[2014 No. 454 J.R.]
[2014 No. 510 J.R.]
[2014 No. 511 J.R.]
[2014 No. 514 J.R.]
[2014 No. 571 J.R.]
Administrative & Constitutional Law – Commission for Public Service Appointments – Internal Competition for Promotion – Irish Prison Service – Public Service Management (Recruitment and Appointments) Act, 2004 – Selection Process – Legitimate Expectation.
Facts: The applicants sought judicial review proceedings in respect of the alleged breaches of fair procedures in the interview process thereby quashing the results of a selection process for the posts of Work Training Officer in the Irish Prison Service. The applicants claimed that the respondent had failed to fulfil the requirements of natural and constitutional justice in decision making. The applicants complained that the respondent had applied an inherently unfair marking scheme. The applicant relied on the report of the Commission that had raised concerns about the management of the work training officer recruitment process. The applicant argued that the appointments had not been made on merit and that it lacked fairness and transparency. The applicants claimed that the respondents had the knowledge of the inherent flaws in the process prior to the publication of the Commission's report of June 2014. The respondents contended that whilst the applicants" complaint focused on the unfairness in the competition process, in reality the complaint had been filed only because it turned out to be contrary to the applicants" expectation. The respondents claimed that the plea of legitimate expectation would not prevail against the statutory framework.
Mr. Justice Eagar held that the proceedings would be dismissed. The Court observed that the the main complaint of each of the applicants concerned the placement in the competition and not unfairness with respect to the process of appointment. The Court stated that the applicants had failed to establish any legitimate expectation or breach of same by way of the operation of the competition in question.
The applicants in these judicial review proceedings are prison officers in the Irish Prison Service.
On 30th May, 2013 the Irish Prison Service (herein 'the respondent') advertised an internal competition for the promotion of prison officers to the position of Work Training Officer (pursuant to Circular 02/2013). Details of the duties, responsibilities, skills, attributes, qualifications, eligibility and the selection process relating to the position were set out in the circular. The work training officers would work with prisoners in the following areas:
1. services; laundry; industrial cleaning;
2. catering/catering bakery;
3. environmental horticultural waste management, environment;
4. industrial skills, embroidery, engraving, light assembly, domestic fabric work, painting, tiling, car maintenance;
5. crafts, metal work, welding, carpentry, joinery, construction skills;
6. ISM — Integrated Sentence Management, Personal Development — employability skills;
7. physical education;
8. computers, printing.
The Court will first describe the selection process that followed from the circular advertising the role of work training officer. Secondly, the role of the Commission for Public Service Appointments (herein 'the Commission'), and the relevant sections of the Commission's Code of Practice (herein 'Code of Practice'), which establishes review mechanisms of recruitment and selection processes will be set out. The mechanisms utilised by the applicants in requesting reviews of this selection process will be established, in assessing each of the individual applications for relief.
Candidates as part of the job application form were required to identify any qualifications they held that were relevant to the work training officer position. Marks were awarded based on the relevance of candidates' qualifications. A shortlisting process followed, carried out by 5 assessors, and initially 254 out of 394 candidates were shortlisted for interview. In order to qualify to be interviewed, candidates had to reach a qualifying mark of 115 out of an available 200 marks.
As a result of the shortlisting process, two lists were compiled by the assessors, one list contained the names of candidates being shortlisted for interview, and the other list contained the names of candidates not being shortlisted for interview. These lists were sent to the governors of the various institutions and posted on staff notice boards.
Section 9 of the circular 02/2013, initially advertising the work training officer position, had referred to the Commission's Code of Practice. It stated:—
'The recruitment and selection process for appointment to this position will be conducted in accordance with the Code of Practice [...]'
By way of background, the Commission was established by the Public Service Management (Recruitment and Appointments) Act, 2004 which has a responsibility for overseeing recruitment and promotion practices within the Civil Service. The Commission has the power to amend the terms of a recruitment licence issued to a public body, or in extreme cases to revoke a licence, however the Commission does not have the power to alter a recruitment decision once made (s. 1.2 of the Code of Practice). The role of the Commission extends to auditing (this Court's emphasis) recruitment and selection policies in order to evaluate and safeguard the standards established in its Code of Practice.
Section 7 of the Code of Practice sets out the following: 'review procedures where a candidate seeks a review of a decision taken in relation to his or her application'. The formal review procedure adopted under section 7 comprises two stages. The first stage involves a review by a person in the recruiting body referred to as the 'initial reviewer'. Where a candidate remains dissatisfied following this initial review, he/she may seek to have the conduct of the initial review examined by a 'decision arbitrator'. The decision of the decision arbitrator in relation to the matters is final. In the alternative, the candidate may seek to have the matter resolved on an informal basis (section 7.5 of the Code of Practice).
Section 8 of the Code of Practice covers: 'review/appeals procedures in relation to allegations of a breach of the code of practice.' This review/appeals process enables persons to seek a review where a breach of the Code of Practice is alleged. An informal review may be carried out by the office holder after receiving a complaint. Should the complainant remain dissatisfied following this informal review, or wish to have the matter dealt with formally, then he/she may adopt formal procedures. This involves the complainant writing to the office holder detailing the allegation of the breach of the Code of Practice. Upon receipt of the complaint, the office holder should issue an acknowledgement within 3 working days. The complaint should be reviewed by a person other than any individual directly associated with the appointment process in question. The person conducting the review (the 'reviewer') will have regard to all information which is material to the complaint. The office holder then communicates the decision of the reviewer to the complainant, and should indicate that the complainant may seek a further review, by referring the matter to the Commission, by way of an appeal of the review of the office holder. The procedures to be followed by the Commission in the handling of complaints comprises of examining a complaint and then publishing a written report, to the party making the complaint and the office holder within 25 working days. The decision of the Commission is final.
Thus, the section 7 review may be conducted on an informal basis or in the alternative, a formal review may be conducted, comprising of a review by an 'initial reviewer' (a person within the recruitment body) and if appealed, a review by a 'decision arbitrator'. The section 8 review may comprise of an informal review carried out by the office holder, or in the alternative, a formal review conducted by a person under the auspices of the office holder, not directly involved in the initial decision under review – 'the reviewer', and if an applicant remains dissatisfied with the reviewer's decision, this may be appealed to the Commission.
The shortlisting process for the work training officer position was subject to a large number of requests for review pursuant to section 7 of the Code of Practice. A decision was taken by the respondent to review all applications from candidates who did not reach the qualifying mark to be called for interview. Seamus Beirne, Assistant Principal Officer of the Irish Prison Service headquarters, was assigned to carry out informal reviews under s. 7 of the Code of Practice. Ms. Angela Kenny was appointed to carry out formal reviews that arose under the Code of Practice, and Mr. Joe Boyle was appointed as the...
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