McNamee v Donegal County Council

 
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ODEI – the equality tribunal

DEC - E - 2002/048

File No. EE 2001/198

Employment Equality Act, 1998

McNamee (Represented by IMPACT)
v.
Donegal County Council
Abstract:

Employment law - Equality - Discrimination - Competition of high grade - Selection - Claim for discrimination on grounds of discrimination - Employment Equality Act, 1998

The respondent advertised a high grade vacancy and the applicant applied. She was the only applicant. The respondent advised her to speak to previous holders of the position and subsequently she withdrew her application. She claimed that she was advised to withdraw it. Later the respondents re-opened the competition and she re-applied. When the position was awarded to a male she claimed discrimination.

Held by the equality officer that the respondent did not discriminate against the complainant in the manner which it conducted the previous competition and the changes that were effected in the intervening period between the two competitions.

Date of Issue 18/11/2002
1. DISPUTE
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1 This dispute concerns a claim by Ms. Anne McNamee who was employed by Donegal County Council that she was discriminated against in terms of Sections 6(1) and 6(2)(a) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act with respect to the competition for Acting Grade VI and also with respect to the respondent’s handling of the previous competition and the changes that were effected in the intervening period between the competitions.

2. BACKGROUND
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1 The complainant applied for the position of Acting Senior Staff Officer (Grade VI) in the Housing Department when it was advertised in January, 2001. She was the only applicant for the position. It is her contention that she was persuaded by management to withdraw her application. The complainant did withdraw her application in writing on 31st January, 2001. The respondent reorganised the work in the Housing Department before re-advertising the position in March, 2001. The complainant re-applied and following an interview she was placed second on a panel. The successful candidate in the competition was male. It is the complainant’s contention that the respondent discriminated against her on the grounds of her gender when it persuaded her to withdraw her application for the position when it was originally advertised, when it reorganised the work and when it appointed a male to the position in preference to her.

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2.2 Consequently the complainant lodged a formal complaint with the Director of Equality Investigations

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on 19th September, 2001 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 26th March, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received and a joint hearing took place on 9th September, 2002. Additional information was received from both parties with the final correspondence received on 29th October, 2002.

3. SUMMARY OF THE COMPLAINANT’S SUBMISSION
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3.1 According to the complainant she applied for a promotional post of Acting Grade VI with her employer on 12th January, 2001. The position arose in the Housing Section of the respondent organisation. Following a series of exchanges with the Administrative Officer in Housing the complainant contends that she was being actively dissuaded from pursuing her interest in the post and she formally notified the Personnel Officer of her intentions to withdraw her application. The complainant says that during the month of February the respondent revised the staffing levels within the Housing Department and then re-advertised the post of Acting Grade VI in early March. The complainant submitted an application for this competition and in total there were five applicants. Following the competition the complainant was placed second on a panel and the successful candidate was male who was already working in the Housing Department. Based on her suitability and experience it is the complainant’s contention that she should have been successful in the competition. As a result she alleges that she was discriminated against on the grounds of gender in contravention of the Employment Equality Act, 1998 with respect to this competition and also with respect to the respondent’s handling of the previous competition and the changes that were effected in the intervening period between the two competitions.

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3.2 The complainant states that when the vacancy first arose the respondent had a panel of Senior Staff Officers in existence. The next available person on this panel was female but she was not offered the position. According to the complainant this constituted a departure from what had previously happened when an acting vacancy was offered to a male candidate on the basis of his position on the permanent panel.

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3.3 The complainant contends that she was actively dissuaded by the Administrative Officer in the Housing

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Section from pursuing her interest in the position. According to the complainant the exchanges between herself and the Administrative Officer reflected discrimination on the basis of sex and the repeated lack of support expressed by the Administrative Officer at a second meeting on the subject constituted gender related bullying. At the initial meeting the Administrative Officer advised the complainant that the workload was excessive, there was pressure from local representatives and housing applicants and tenants. He also said that “the work pressures were horrendous” and don’t come round to me crying in a few weeks when you are tearing your hair out. The complainant alleges that the language used by the Administrative Officer was sexist and that a different choice of words would have been used in an exchange with a male candidate. The complainant says that she indicated to the Administrative Officer that she would expect to be familiar with the work within a time frame of three months and his response was that she would not get three months in this job, rather “she would have to hit the ground running”. The complainant notes that the Administrative Officer did not indicate that he would support her or be of assistance to her. She says that she asked the Administrative Officer about policies within the Housing Department and was told that the

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Department did not have policies on anything. The complainant contends that these exchanges justified her claim of discrimination on the grounds of gender particularly in respect of her allegation regarding her being actively dissuaded from pursuing her interest in the post. It is her belief that a different approach would have been taken had a male member of staff made a similar approach to a Manager of the Housing Department.

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3.4 The complainant contends that the reorganisation within the Housing Department, which took place following the withdrawal of her initial application for the Acting Grade VI post, constituted a further example of discrimination. According to the complainant the revised assignment of the Acting Grade VI post reflected to a significant degree the work that had previously been undertaken by the successful male candidate. The complainant contends that the advantage conferred on the successful male candidate by this reorganisation constituted discrimination against her and was gender based.

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3.5 The complainant submits that she was not awarded sufficient marks at interview for the Acting Grade VI post having regard to her level of education, training and previous experience. The marks received by the complainant are attached as Appendix A. According to the complainant the respondent refused to offer any explanation for the criteria used by the Interview Board to determine suitability. It is the complainant’s belief that a compelling comparison can be drawn between her complaint and the process examined by the Equality Officer in the case of Mary Crowley and Cork County V.E.C

(2)
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3.6 The complainant contends that the respondent has breached the provisions of the European Community’s (Burden of Proof and Gender Discrimination) Regulations, 2001 - S.I. No. 337 of 2001 in respect of the onus of proof on them to disprove the allegation. The complainant says that the respondent has never complied with the Directive from the Minister for Environment of August, 1998 to initiate gender equality measures in the workplace.

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3.7 According to the complainant the respondent has failed to meet the test set out by an Equality Officer in

the case of Turley McGrath v Co. Donegal Vec
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(3)

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in which it was stated:

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“In a situation where a successful candidate is selected on the basis of his/her performance at an interview, the questions must be considered by an Equality Officer, are whether the interview has been conducted in a non-discriminatory manner, whether there are significant reasons why the claimant should have been selected and whether the Board had credible and non-discriminatory reasons for not selecting the claimant.”

  1. (2)

    Equality Officer Decision DEC-E-2000/10

  2. (3)

    Equality Officer Recommendation EE4/96 [1997] E.L.R.1

    In support of her claim the complainant invokes the provisions of the case ofMary Higgins v Co. Laois Vec(4)where it is held “an Interview Board fails to consider the work, experience and qualifications of candidates in their selection, that evidence can be used in support of an allegation of discrimination, on the basis of sex”. The complainant also refers to the case of O’Donoghue v Guardian Royal Exchange plc

  3. (5)

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where it was held that “in the event of an unsuccessful candidate being as well qualified as the successful candidate, the onus shifts to the employer to demonstrate that there was no discrimination on the grounds of sex”. It is the...

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