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WRC Upholds Victimisation Complaint and Orders Respondent to Appoint Complainant to the Role

In Tara McManus v Garda Representative Association ADJ-00028686 the Complainant claimed that she had been unlawfully discriminated against on the basis of her gender in her application for the position of Assistant to the General Secretary of the Respondent. The Complainant submitted a complaint to the Workplace Relations Commission (“WRC”) under the Employment Equality Acts 1998-2015 (the “Acts”). The Complainant also lodged a second complaint under the Acts that she had been subjected to further discrimination after submitting a second application for the same position and claimed that she was subjected to victimisation in respect of this second application.

Facts: The Complainant has been a member of An Garda Síochána since February 2000 and has held a number of different positions during that time. The Respondent is the professional representative organisation for members of An Garda Síochána.  The Central Executive Committee (the “CEC”) forms part of the Respondent and is responsible for governing the Respondent between meetings of the Annual Delegate Conference. According to the Rules of the Respondent, when a vacancy arises in the office of the General Secretary or Deputy General Secretary, an interview board is established to conduct interviews with shortlisted candidates and the board nominates one individual only to the CEC. After being selected by the interview board, the nominated person must obtain the approval of two thirds of the votes cast by CEC members and must be further ratified by the Annual Delegate Conference. There is no obligation on CEC members to give reasons for refusing to ratify a candidate.

The Complainant applied for the position of Assistant to the General Secretary with the Respondent. On 12th July 2018, the CEC formed an interview board. Following two interviews and a psychometric test, the Complainant was unanimously selected by the interview board as the most suitable candidate. The CEC ratification vote, carried out by secret ballot on 13th February 2020, did not meet the two thirds majority required and the Complainant was therefore not appointed to the position (22 votes in favour, 19 against).  

The Assistant to the General Secretary role was filled on an interim basis at a subsequent meeting of the CEC. Although the Complainant was nominated and seconded by two members of the CEC, a male member (who had not even been a candidate for the position) was appointed on an interim basis.

There was a second competition for the Assistant to the General Secretary position in October 2021. The Complainant was again selected unanimously by the interview board. At a meeting of the CEC (for the purpose of ratification) on 11th November 2021, there was a reference to the Complainant having made a complaint to the WRC in respect of her first application, causing the interim General Secretary to outline the definition of victimisation. The result of this vote (again by secret ballot) was that the Complainant received 62.8% of the vote instead of the requisite 66.6%. The vote was retaken on 23rd November 2021 based on legal advice, as the original vote was contrary to a CEC decision in January 2021 that future CEC votes would be public. An open vote was held, pursuant to which the Complainant only received 56% of the vote. Some members raised an issue with the public nature of the vote and there was further discussion about the Complainant having lodged a complaint with the WRC, with one member stating as follows: “This is a shitshow. We have to move forward. This vote will bury this Association… I voted on the sole reason she’s suing the Association…and you can tell her that.”

The Complainant’s representative referred the WRC to the 2017 Ampersand Report; an independent review of the Respondent that was commissioned in response to criticism of its lack of transparency and outdated approach, and for being “a boys club”.  The report found that the Rules were no longer fit for purpose. The report stated: “The ‘boys club’ metaphor reflects the reality of the 30:1 ratio of male to female membership of the CEC when the Association’s membership is 27% female.” The report was very critical of this “unacceptable” ratio and the failure to address the issues contributing to it. It was submitted by the Complainant that the appointment process pursued by the Respondent was very evidently tainted by unlawful discrimination and that the Complainant was victimised in respect of her second application for the position.

The Respondent argued that at all times it followed the mandatory procedure set down in its Rules and that it could not lawfully disregard this procedure as it is contained within a statutory framework. In its defence, the Respondent referred to the fact that the Complainant was proposed by the interview boards on each occasion over other male applicants and received the support of the majority of the CEC in each vote, which, they argued, was inconsistent with a discrimination claim. The Respondent argued that the “two thirds rule” is a neutral rule which applies regardless of gender. The Respondent also denied that the Complainant was victimised, arguing that the fact that she received a simple majority, and an increase in the number of votes in her favour, was “incompatible” and “inconsistent” with a complaint of victimisation.

Decision: The Adjudicator noted that the Complainant was, “by far, the most suitable candidate for the position.” However, he referred to the fact that the Complainant had not named a male comparator with whom to contrast her treatment. The Adjudicator reviewed the Labour Court decision in Melbury Developments v Arturs Valpeters where the Court made it clear that section 85A of the Acts requires the Complainant to first establish facts of sufficient significance from which discrimination may be inferred. The Adjudicator found that in this case it was not possible to conclude that the CEC voted as it did because of the Complainant’s gender, so the first complaint was not upheld.

In relation to the second complaint, the Adjudicator examined section 74 of the Acts and the definition of “victimisation”, noting that it applies not only to employees, but also to job applicants and prospective employees. The Adjudicator noted that victimisation is a standalone cause of action which protects employees and job applicants from retaliatory treatment for making a complaint of discrimination against an employer. He described the prohibition on victimisation as “a cornerstone” of the legislation. The Adjudicator found that the Complainant was victimised by at least one member of the CEC.

As the Complainant informed the WRC that she was not looking for financial compensation, the Adjudicator awarded her no compensation. However pursuant to section 82(1)(e) of the Acts, a WRC Adjudicator can order an employer to take a specified course of action. The Adjudicator ordered the Respondent to appoint the Complainant to the position of Assistant to the General Secretary, noting that the position was still vacant. The Adjudicator also ordered the General Secretary, on behalf of the CEC, to provide an assurance to the Complainant that there would be no negativity towards her on her appointment.

Takeaway for Employers: This case serves as an important reminder that compensation is not the only form of redress available to the WRC under the Acts. An Adjudicator can make an order that an employer take a particular course of action as it considers appropriate in the circumstances of a particular case. Employers should be conscious of this and should ensure that their policies and procedures, including their recruitment policies and procedures, are compliant with the Acts. Employers should also be cognisant of the need to ensure that any individual who has made a complaint of discrimination is not treated adversely as a result. The Acts provide strong protection to employees in respect of victimisation and a complaint of victimisation may succeed even in circumstances where a related discrimination complaint does not. Notably in this case, the Adjudicator made a specific order that the General Secretary provide the Complainant with an assurance that she would not be subjected to negativity on her appointment.

Link –   https://www.workplacerelations.ie/en/cases/2022/october/adj-00028686.html

Authors – Tara Kelly, Jenny Wakely and Anne O’Connell

28th October 2022

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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