WRC Find Selection Process Tainted with Discrimination

In the recent case A Complainant v A Media Company (ADJ-00043525) the Complainant alleged she…

In the recent case A Complainant v A Media Company (ADJ-00043525) the Complainant alleged she was discriminated against based on her family status when she was passed over for promotion following her return from maternity leave. She issued a complaint to the Workplace Relations Commission (“WRC”) under the Employment Equality Acts 1998-2015 (“the Acts”).

Facts: The Complainant’s evidence was that she was employed as a Planner with the Respondent company. She worked for the company for 15 years and was the longest serving member on her team. She submitted to the WRC she had always took on the role of “acting manager” and trained in new staff. She was unsuccessful in her application for a Team Lead role with the Respondent following her return from maternity leave. She had trained in the successful candidate who was promoted to Team Lead.

The Complainant returned from maternity leave in August 2022. The Complainant gave evidence that she was excluded from an important planning meeting in September 2022, when she had previously attended such meetings. The Complainant also gave evidence that certain comments were made to her following her return from maternity leave. She gave evidence that a manager “Ms. D” referred to her “extended maternity leave” which the Complainant felt was a passive aggressive comment. Ms. D was a member of the interview panel to select the Team Lead, along with two other internal managers “Mr. N” and “Ms. C”. Ms. C was a representative from HR, and according to the Complainant she received interview feedback from Ms. C in which Ms. C said “timing is everything” to her twice.

The Respondent submitted to the WRC that it was a robust process; that five candidates were assessed by interview, presentation and psychometric testing. Another candidate on maternity leave was invited to apply for the position of Team Lead and was also unsuccessful. The Respondent said the successful candidate’s presentation was stronger with a focused vision for uniting two teams, which was important as there had been problems with morale while the Complainant was out. The Respondent referred to there having been five criteria used to assess the candidates at interview: knowledge and understanding of the role, professional and technical expertise, communication, leadership capabilities, planning and organising, and attitude and flexibility. The Respondent highlighted that the Complainant refused to lodge an internal grievance so the company could investigate her concerns and that she was a highly valued member of the team. The Complainant stated she had not wanted to pursue an internal grievance as she believed the procedure was not impartial and had unfavourable outcomes for employees.

Decision: The Adjudicator, Davnet O’Driscoll, found that the selection process for the appointment of Planning Team Lead was tainted with discrimination. The Adjudicator made two orders:

1. 1. An order for the Respondent to pay compensation of €30,000 to the Complainant for the effects of the discrimination
   2. An order for the Respondent to carry out equality and unconscious bias training for all staff within 12 months

In coming to her decision the Adjudicator noted that section 6 of the Acts state that discrimination occurs when a person is treated less favourably than another person in a comparable situation based on any of the discriminatory grounds, which include family status. In a discrimination complaint it is on the Complainant, in the first instance, to establish facts from which discrimination may be inferred. Once this test is satisfied only then does the burden of proof shift to the employer to rebut the presumption of discrimination and prove the contrary.

A quote from the case of DPP v Sheehan was referred to in the WRC decision:

“There is no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies. However, an inference of discrimination can arise where, for example a less qualified man is appointed in preference to a more qualified woman.”

The Adjudicator was satisfied the comment made by Ms. D about the Complainant’s extended maternity leave raised an inference of discrimination on the grounds of family status. The Adjudicator was concerned about Ms. D’s impartiality on the selection panel. For example, the Adjudicator noted the successful candidate was marked five for “attitude and flexibility” but the Complainant only scored three in this category. Ultimately the Adjudicator found the Respondent had not rebutted the presumption that the Complainant was discriminated against.

Takeaway for Employers:

This case demonstrates that once an employee has pointed to enough factors to raise a presumption of discrimination it can be difficult for an employer to get over the hurdle of rebutting that presumption even where it can point to arguably logical reasoning for its decision making. Employers need to be particularly careful in terms of the terminology and/or descriptions they use when referencing an employee’s protected leave such as maternity leave.

Link – https://workplacerelations.ie/en/cases/2024/adj-00043525.html

Authors – Tara Kelly and Laura Killelea