A garda who was marked down in an interview for a detective post three years ago when she was obviously pregnant has won €10,000 in compensation for sexist discrimination.
Her representatives had told the hearing that discrimination could be “inadvertent” and that their client was not claiming anyone “set out to discriminate against her”, only that the difference in how she was assessed “must be examined”.
The WRC noted the importance of including an independent member on an interview panel and found that the absence of such a member on the garda panel was a concern.
The force had failed to show discrimination had not occurred because of a “flawed” process in August 2020 which favoured interview “performance” rather than actual answers to competency questions and left open the risk of the “manipulation” of marks, the Workplace Relations Commission (WRC) found.
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The WRC noted the importance of including an independent member on an interview panel and found that the absence of such a member on the garda panel was a concern.
“I have a concern that, faced with a heavily pregnant woman and a number of young and ambitious men, [the senior interviewer] made a subjective assessment and decided in favour of the men,” the adjudicating officer wrote.
The order was made on foot of a complaint by Dundalk-based Garda Siobhán McCoy against An Garda Síochána under the Employment Equality Act 1998 over her interview for a detective’s post in August 2020.
The complaint was denied by the State.
Gda McCoy’s representative, Joe Bolger of ESA Consultants, who was instructed by the Garda Representative Association (GRA) in the matter, told the tribunal his client had secured a score of 81 per cent in a competency-based interview for a detective garda post in February 2019, when she was pregnant with her first child.
However, when she went to interview for the role in a second competition in August 2020, while she was 36 weeks pregnant, she received a grade of 70 per cent, the tribunal was told.
Gda McCoy said she had been appointed to a cold case investigation in 2017 based at Ardee, Co Louth, because she was capable and the detectives at Dundalk were “too busy” at the time.
She said she was satisfied with her grade in the 2019 competition, and thought an incident room co-ordination course she took in the intervening period would stand to her.
Gda McCoy accepted under cross-examination by State counsel Aislinn O’Donnell BL that the incident room course was not part of the detective role profile.
Firearms competence was, however, listed as desirable, the tribunal was told, and Gda McCoy said she had missed a firearms course while on maternity leave.
Both interviews were with the same two-person interview panel of a detective superintendent and an inspector. Gda McCoy did not get a place on a panel for promotion on either occasion, the tribunal heard.
Mr Bolger said discrimination could be “inadvertent” and that his client was not claiming anyone “set out to discriminate against her” but that the difference in how she was assessed “must be examined”.
“The only variable between 2019 and 2020 was the fact that she was pregnant,” he said.
Ms O’Donnell, defending the claim on instructions from the Chief State Solicitor’s Office, argued Gda McCoy’s discrimination claim was “entirely speculative” and that the 2020 detective competition was “based on objective ratings to ensure that the candidates were appointed on merit”.
Now-retired Det Supt Alan Cunningham, who sat on the interview panel, gave evidence that the 2020 candidates were “younger than the 2019 cohort” and more “tuned in” to a competency interview and gave high-quality answers.
“The group in 2020 were more competitive,” he said.
In cross-examination, Mr Bolger asked the witness whether Gda Bolger had been “marked down because of nerves”.
Mr Cunningham said Gda McCoy “did not perform as well” in 2020 as the year before.
“She was more nervous,” he said, adding: “You try to get the best out of the candidates by drawing them out, but what counts is their performance on the day.”
One of the best performers on the day was “recently out of Templemore”, he said.
“Skills and service don’t count,” he said.
He said the candidates were graded after all 26 interviews were concluded.
In her decision on the case, adjudicating officer Catherine Byrne wrote that this approach risked awarding the highest scores to the “most memorable” candidates and the “manipulation” of scores “to ensure the perceived best performers come out on top”.
This was among the reasons Ms Byrne cited in concluding that the interview process was “flawed” and that the force had failed to show the marking was not influenced by the fact the complainant was pregnant.
She found there had been an “undue emphasis” on “performance” at the interview, impacting a “proper consideration” of the complainant’s answers to competency questions.
Ms Byrne said she accepted the complainant’s evidence that she “was not nervous” at the interview, as Mr Cunningham had not “tested” it by moving to put the complainant at ease, she wrote.
Ms Byrne added that the references to “younger” and more “competitive” candidates being considered better performers led her to conclude this was “more highly rated than ten years of solid experience of a woman pregnant with her second child”.
The absence of an interviewer independent of An Garda Síochána was also a concern, she wrote.
“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,” she wrote.
Ms Byrne noted that Mr Cunningham did not explain what “measure” was used to decide the 2020 candidates had “superior abilities” said it was a “subjective judgment based on a perception of an individual’s ambition to succeed”.
“I have a concern that, faced with a heavily pregnant woman and a number of young and ambitious men, Mr Cunningham made a subjective assessment and decided in favour of the men,” the adjudicator in the case wrote.
Upholding Gda McCoy’s complaint of gender-based discrimination, Ms Byrne ordered the force to pay €10,000 in compensation.