Siobhán McCoy v An Garda Síochána ADJ-00032117

This is a very interesting case dealing with a complaint made under Section 77 of the Employment Equality Act, 1998.  It serves as a good reminder of the challenges in managing interviews for promotion from an equality law perspective, in particular where one of the applicants was pregnant at the time. It is also an interesting decision in the context of unconscious bias.

Brief Summary of Facts

The complainant was a member of An Garda Síochána. In February 2019, the complainant sat an interview for the role of Detective Garda.  Although she was not appointed to the panel of successful candidates, she achieved a score of 203 out of 250 at the competency-based interview, giving her a percentage rating of 81%. The complainant went on maternity leave in September 2019 and she returned to work in March 2020.  She was pregnant with her second child in June 2020 when another competition for the role of Detective Garda was advertised.  Along with one female and 24 male colleagues, she applied again for the job and she attended an interview in August, when she was 36 weeks pregnant.  This time, the complainant only achieved 175 marks out of 250 (70%) and she was not included on the panel of 13 successful candidates.

The claimant issued a claim for discrimination on the gender and family status grounds.

Statutory Position

The opening section of the preamble to the Employment Equality Act 1998 as amended ("The Act") states that the legislation is derived from certain EU directives on equal pay for men and women and equal treatment as regards access to employment.  The objective of the legislation is to make “further provision for the promotion of equality between employed persons.”  The Act goes on to provide that, in respect of access to employment and terms and conditions of employment, employers must not discriminate under nine specific headings, the “discriminatory grounds,” including the gender and family status grounds.

Discrimination is defined at section 6(1) of the Act:

“…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

A new sub-section, (2A) was inserted into the 1998 Act by the Equality Act 2004.  This provides that less favourable treatment of a pregnant employee is to be considered as discrimination on the gender ground:

“(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

It is the complainant’s case that she was discriminated against when she was awarded less marks at an interview in August 2020, when she was 36 weeks’ pregnant, compared to an interview she did in February 2019, when she was also pregnant, but not obviously so.

Burden of Proof

In their submissions, the representatives for both sides referred to the burden of proof set out at section 85A of the 1998 Act, which was inserted by section 36 of the Equality Act 2004:

“85A – (1) Where in any proceedings, 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.”

It was noted that a  “…a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

Decision

 In reaching a decision, it was noted that Adjudication Officer had no authority to insert itself into the selection process or to decide that the complainant was more suitable than any other candidate.  The task is to consider if the fact that the complainant was pregnant at her interview in 2020 had an influence on the marks she was awarded.  It was the view of the Adjudication Officer on hearing both sides' detailed submissions that that the interview process in which the complainant participated in August 2020 was flawed and that the marks awarded to her were influenced by the fact that she was pregnant.

The Adjudication Officer was not satisfied that the respondent has demonstrated that this was not the case and reached its conclusion for the following reasons:

1.  The interviewers placed undue emphasis on the complainant’s “performance” at the interview to the detriment of a proper consideration of her answers to the competency questions.

2.  The complainant was perceived to be nervous, but the interviewers did not intervene to test that assumption.

3.  Candidates who were younger, more competitive and “more in tune” with competency interviews were considered to be better performers than the complainant, who has longer service and is therefore, older than many of the successful candidates.

4.  The reference to the successful candidates as “competitive,” “younger” and “more in tune” led to a conclusion that these attributes were more highly rated than 10 years of solid experience of a woman pregnant with her second child.

5. The marking of the interview notes was not carried out at the end of each interview, creating a temporal distance from the answers given by candidates to the questions asked and leaving the interviewers to rely on their recollection of the candidate’s performance.

6.   No person independent of An Garda Síochána was on the interview board. Before concluding, a final observation was made about the interview process.  The adjudicator pointed out, as it is with every organisation, the selection of the most suitable candidates for roles is one of the most important decisions made by Garda management.  Appointing the right person to a job is what makes organisations succeed and, for an organisation like An Garda Síochána, the right person in a job inspires public confidence and the confidence of everyone who works there.  Bias is not something that any of us will own up to, but it is an affliction everyone (including adjudication officers) suffers from.  Unconscious bias means that we don’t recognise when we prefer one person over another, and we cannot explain the reason why.  From an organisational perspective, unconscious bias means that the people who get promoted are likely to mirror the attributes of the hirers.  For this reason, it is important that an interview panel includes someone independent of the organisation.

Based on these conclusions, the Adjudication Officer found that, contrary to section 6(2A) of the Employment Equality Act 1998, the complainant was discriminated against on the gender ground.
The Adjudicator decided that this complaint of discrimination on the ground of gender is well founded.  In accordance with her powers of redress under section 82 of the Employment Equality Act 1998, she ordered the respondent to pay the complainant compensation of €10,000 for the effect of that discrimination.

CONCLUSION
This case is a very good example of the complex factors to be taken into account in an internal interview process.

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