Cases
A Government Department Employee v A Government Department
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
CA-00007104-001
20/09/2016
Date of Adjudication Hearing: 27/06/2017
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the Complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances, and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed), and I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and opened up in the course of the hearing).
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated 20th of September 2016) seeks redress from the Respondent in circumstances where she claims her Employer behaved unlawfully and discriminated against her in the course of an interview (for promotion) during the course of which she claims that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of both her Civil status and her Family status (as detailed in Section 6 of the 1998 Act (as amended))
The Complaint has been brought within the six months from the date of the occurrence.
In the event that the Complainant is successful it is open to me to make an award of compensation and /or give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
Background:
The complainant is an Executive Officer in a Government Department. The complainant started working with the Civil Service in 1993. The Complainant brings a complaint against her long standing employer – the Respondent herein – by way of a Workplace Relations Complaint Form dated the 20th of September 2016. The Complainant has specified that she was discriminated against on the grounds of both her Civil Status and her Family Status when she was subjected to a line of questioning at a job interview she was partaking in, as part of the process of competition for a position in which she was particularly interested.
The Complainant was represented by an Official from the Public Service Executive Union (PSEU).
The Respondent was represented by the Department Personnel Officer and was also accompanied by a legal advisor to the Department.
It should be noted that the person whose remarks and/or questions are the basis of this Complaint herein was not at the hearing, being otherwise engaged. His regret was noted. The Department Officials opted to proceed in circumstances where the fact of the statements having been made was neither challenged nor denied. It is further noted that this matter had already been listed for hearing on two previous dates and had been postponed on each occasion and that the parties were anxious to have the matter heard.
This matter was fully heard on the 27th of June 2017 and the Complainant and the HR Officer (also a witness herein) gave oral evidence in addition to having the previously prepared submissions opened to me. The Representatives for both parties were given every opportunity to fully explain and expand upon their position.
Summary of Complainant’s Case:
The Complainant gave her own oral evidence which I have taken on board in conjunction with the submissions made. The complainant outlined her career progress which includes a fifteen year period at the level of Executive Officer within the Civil Service. In May of 2016 a number of positions as Private Secretary to two different Ministers of State were notified to all staff. Both positions related to Junior Ministers in the Respondent Government Department. The Complainant was very familiar with the type of process outlined for the selection of a candidate. In this instance a two stage process was indicated where it was expected that a successful applicant would have to go through a shortlisting stage and then present for what was described as a “competency” based interview. In the interview it was expected that candidates would demonstrate competency under certain defined headings e.g. Specialist knowledge of the role of Private Secretary.
The Complainant was aware of the fact that the Interview would be conducted by the Minister of State to whom this position would attach as well as with a Senior member of the Human Relations department. The Complainant successfully got through the first process and along with (ultimately) two other persons was short listed for the competency based interview.
One of key aspects of the position (as outlined in the Office Notice) which was opened to me was an understanding that this was to be a full time position with no flexi-time operation and there was an expectation that a successful candidate would be required to work unsocial hours and weekends. The Complainant was therefore fully aware of the challenges and expectations associated with, and demanded of the positon, and was happy to put her name forward.
There can be no doubt that the Complainant was very hopeful of success in the interview process. There were only three people chasing two positions. The Complainant had more than twenty year service and the Complainant had previously served in a role of private secretary – for a three year period to the Secretary General of the Department (being the most high ranking civil servant responsible for running the Government Department and implementing Government Policy). It is common case that the Complainant came to this interview with all the appropriate skills qualifications and attributes.
In what was described as a surprising turn of events (and in the course of the interview) the Minister of State asked a number of questions of the complainant which he in fact prefaced by saying something along the lines of … “I know I shouldn’t be asking this, but….” and then asking :
Are you a married woman?
Do you have children?
How old are your children?
Taken off guard, the Complainant answered the questions – she confirmed that she was a married person, she confirmed that she was the mother of two children and she indicated their ages. The Minister observed that the Complainant “must be very busy”.
The interview moved on. The Complainant felt even before the interview was completed that the questions had been inherently unfair and she felt exposed, having been persuaded to disclose the fact that she had children of relatively tender years. This she indicated could in turn give rise to assumptions concerning the inevitable demands of family life and parenting as against the contrasting image of a strong, willing and able candidate that the Complainant sought to present for the job in question.
It was noted by the Complainant that at the interview no explanation was given by the Minister as to why he asked these questions and it is regrettable that the HR official did not make a timely intervention and simply put a stop to this line of questioning. In her evidence the Complainant stated that these questions and associated remarks were subsequently sought to be given “context” but this context was not explained at the time of the interview either by the Minister of State in question nor by the HR Official. The Complainant felt she had been blind- sided.
In her evidence and indeed in the comprehensive note taken by the Complainant in the days after the interview the Complainant described how she felt that the “interview was slipping away from her”, and the Complainant described how in the final phases of the interview the Complainant was distracted and her mind was processing what had been asked of her by the Minster of State as well as also trying to answer the interview related questions which continued to be asked of her.
The Complainant described the Minster of State’s questions as being highly inappropriate and she believed that that she had been put on the back foot, as it were, in being persuaded to disclose what might be perceived to be domestic claims on her attention which would negatively impact the attention she could give to the job she was at that time and in that place, competing for. The Complainant noted that she felt at a disadvantage and was placed in a position of either having to defend the fact that she was married with children or belittle the fact that she was married with children.
In her letter to the HR Manager penned some two days post interview, the Complainant indicated that it was unfair to be in the position of having to explain how her family circumstances would not affect her performance on the one hand, and on the other hand had to worry about the fact that the lack of explanation would have been interpreted negatively against her. It is noted that when writing this letter on the 17th of June, the outcome of the interview process was known to the Complainant.
It is the Complainant’s evidence that it is singularly telling that she, as the candidate with the greatest family commitment, was the candidate of the three available who was not picked for this financially enhancing promotion.
It would be fair to say that the Complainant in her letter of the 17th reserved her greatest criticism for the HR Official acting as servant and or employee of the Respondent entity who could be taken to know or ought to have known (as a person with HR experience) that the line of questioning was inappropriate. The Complainant lamented the lack of intervention on the HR Officer’s part. The Complainant described the Minister of State as “personable”. In the letter of June 17th the complainant invites the HR Official to give some sort of comment or explanation on how this came to pass. In particular, the Complainant had asked “Did I miss something in the office notice which said that women with children need not apply because that is the message which I received””
The HR Official did address the issues raised on the 5th of July 2016 in an email marked “confidential staff matter” and in his email to her, he makes the general observation that the interview for the position of Private Secretary is unique in that there is a subjective element to it (unusual in the Civil Service setting). This is a Minister led interview and the Minister must avail of this short opportunity to determine whether a candidate will be somebody with whom he could hope to have a good rapport in circumstances where he will be relying heavily on the person eventually selected. To some extent the HR official is inviting the Complainant to bear this in mind especially as the Minister appears to have gone so far off script.
In addressing the actual questions raised, the HR official explains (in this email of July 5th)that a certain amount of latitude should be given to this first time Minister. The purpose of the question was a desire on the Minister’s part to move away from the job focused questions and try and get a better idea of the candidate at a personal level and the questions were raised in the context of asking candidates about outside interests such as family and hobbies. He stated that all candidates were asked about outside “interests and hobbies etc.”..
The HR officer recalled the Minister as having said (in the interview) that the details so gleaned were “irrelevant” to the selection process. He further stated that the Minister had further indicated that he was very “flexible” regarding non-work interests sometimes requiring members of his staff to leave early on occasion and this would not be an issue for the Minister. The Complainant in her evidence stated that this had not been clear at the interview
In summary, the HR Officer (in the 5th of July email) does not apparently accept that anything untoward or unusual has occurred at this Interview and he remained silent on the issue of whether he should or should not have intervened.
By the time the complainant received the email of July 5th, the Complainant had already proceeded with making her request for information under section 76 of the Employment Equality Act of 1998. The Complainant believed strongly that she had been discriminated against and treated in a manner unlawful under the Employment Equality Acts. The Complainant submitted the standard EE2 form on the 28th of June 2016. In particular the Complainant alleged that she was discriminated against on the ground of her Civil status and on the grounds of her Family status (grounds outlined in Section 6. (2) (c) and (d)).
There was some correspondence regarding a meeting which it was proposed might be held with the Union representative, HR, the Complainant and the Minister but this process yielded nothing that was disclosed at the Adjudication hearing.
In a further statement made by the Complainant in advance of this matter getting listed before the WRC (made on or about the 27th of March 2016) the Complainant did acknowledge that she may well not have been the right candidate for the position. She conceded she may well have not made the required “connection” (the word used in the email of the 5th of July) with the Minister of State. Crucially for her though, was the fact that these questions were allowed to be asked of her and she says she felt compelled to reply to them in the moment of a highly pressurized interview. The stakes were very high for her and her opportunity slipped away. The Complainant says these questions:
Are you a married woman?
Do you have children?
How old are your children?
Which when read together with the observation “that must keep you very busy” amount to Direct Discrimination. An assumption was being made, she says, that she would be too busy to fully commit to the position she was competing for.
The Complainant pointed out in her evidence, that the Minister of State’s own pre-emptive statement (“I know I shouldn’t ask you….”) amounted to an admission that the line of questioning was discriminatory on the grounds of Civil and Family status.
In addition to the above, the Complainant gave compelling evidence concerning the ongoing difficulties she has within the workplace and arising out of the manner in which the interview was conducted. Not only was she not selected for the position in question but she is now the person in the workplace universally perceived (in her mind at least) to be overly sensitive to her family life. The Complainant additionally described awkwardness in meeting the HR Official and the Minister of State in the working environment. More generally the Complainant has had reason to be worried about a stalled career that had heretofore been on a successful trajectory.
Summary of Respondent’s Case:
The Respondent opened a pre-prepared written submission and added oral evidence to these. The HR Official who had been present at the Complainant’s interview was the primary witness for and on behalf of the Respondent.
It was put to me that there is no agreed process for the interviewing of the position of Private Secretary. It is such an unusual position that it is dealt with on a case by case basis. It was accepted, of course that any process would have to be fair and conducted within the acceptable norms. It was explained to me that the position is often filled without there being any competition, and a Minister may hand pick his or her Private Secretary as the circumstances might allow. This is unusual in the Civil Service and stems from the natural desirability of a Minister wanting to select a person with whom he or she can be reasonably sure he or she might have a good working relationship. A rapport must be established. In such circumstances a formal process might not have to be gone through at all. The position of Private Secretary, it was pointed out is unique in that it exists for only so long as the Minister is in situ or the Minister might otherwise indicate. It is a financially rewarding assignment but not a permanent one, and depending on the vicissitudes of political life the position may be of short duration.
The Respondent witness agreed that there was commonality between the parties in relation to the evidence provided. The fact of the questions having been asked was not denied. The witness explained that the Complainant was only one of three candidates to make it to the interview stage and that this fact spoke to the impressiveness of her CV, her competency and her achievements. It was submitted that in terms of ranking the Complainant came to the interview process ranking third behind the other two Interviewees. This fact it was stated was not known to the Minister of State at the time of the Interviews. The Complainant therefore as far as the Minister was concerned, came to the interview process on an equal footing with her comparators.
The Witness stated that the particular interview process cannot be graded or marked in the usual (and presumably more transparent) way. The decision to select one of the three candidates was made at the end of the round of interviews and the decision is made by the Minister and is quite simply “made in the round” per the HR Officer. There is a subjective element arising out of the Minister’s sense of which of the candidates he might best be able to work with.
The point was empathically made that the Minister of State was simply trying to put the Complainant at her ease. The questions asked were not intended to be intrusive. This was intended to be a “getting to know you” exercise and nothing in particular was meant by what might ultimately be perceived by the Complainant as a deliberate manoeuvre to have certain information disclosed by her and which should otherwise be considered private and /or irrelevant. The evidence is that the Minister declared the fact finding exercise to be “irrelevant” in the course of the interview. The Complainant it was submitted should have taken some comfort from this declaration of it’s being “irrelevant” .
The evidence of the Witness was that these questions were asked in a particular “context”. The Minister of State, it was submitted, was anxious that any potential member of his team would be assured that he would be as flexible as he could be with them and in particular having regard to any external and or non-work commitments that they might have.
It was said in evidence that the other two candidates were also put through a similar “getting to know you” type process. It was further stated that the same three questions were not asked of the other two interviewees. I was told that the male candidate voluntarily disclosed (when asked about what he enjoyed doing in his free time) that at the weekends he likes to spend time with his son and the third candidate was not asked those three questions asked of the Complainant.
The HR Witness gave evidence that he had limited notes taken as this Interview process was not comparable to the standard Civil Service type interview.
The Respondent HR Witness acknowledged the obligations set down under the Employment Equality legislation and the operation of 24/2002 Diversity in the Civil Service –v- A Policy on Equality of Opportunity was confirmed. In that circular, Civil Servants are assured that their rights under the Employment Equality Acts are guaranteed and that no one will receive less favourable treatment than someone else by reason of their gender, marital or family status etc. The circular goes on to state “…the Civil Service is committed to ensuring equality of opportunity in the key resource areas. These are:
-Recruitment
-Promotion…(etc)”
The Respondent further acknowledges and accepts the obligation to ensure that members of interview boards and those persons who might otherwise be involved in the assessment of staff for promotion or recruitment ought to have the many and varied obligations under the Employment Equality legislation specifically brought to their attention.
It was submitted by the HR Officer that he had fulfilled his obligation in advance of the Interview process when he did give some guideline to the Minister of State regarding the proper conduct of the Interviews.
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. I have also considered the submissions provided together with the documents opened to me.
The Complainant has brought a Complaint against her Employer the Respondent entity and in particular pursuant to:
Section 6 of the Employment Equality Act 1998 where
Sub Section (1)…discrimination shall be taken to have 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 subsection (2)(the “discriminatory grounds”)
Sub Section (2) As between any 2 persons the discriminatory grounds..are…
(b) That they are of a different civil status
(c) one has family status and the other does not
Section 8 of the Employment Equality Act 1998 where
Sub section (1) In relation to..(d) promotion or re-grading… an employer shall not discriminate an employee…
It is noted that the Complainant did not submit a complaint of discrimination on the ground of Gender which might also have been applicable in the circumstances.
It is worth noting that the parties are largely in agreement on what happened in the interview. It is accepted that certain questions were asked and whilst the Respondent has sought to give these questions some context or background explanation the Complainant has simply submitted that these question of themselves amounted to a Discrimination
There was no clear indication that this “context” I was invited to consider as being at the heart of the Minister’s reasoning was in fact made known to the complainant in the course of the interview. The Respondent witness says it was, and has placed emphasis on the Minister’s use of the word “irrelevant”.
Having drilled down into the minutiae of her personal obligations and commitments the Minister of State I find did not make it clear to the Complainant that he wanted her to understand that she would find him to be a most flexible employer. In any event, laudable as this sentiment might be, there is an underlying assumption that somebody in the Complainant’s position would require more flexibility in the position than someone with different or lesser external commitments.
So, whilst the Minister of State declared the information to be “irrelevant” the information must also be seen in the context of his also having declared that the candidate’s life “must keep her very busy”. (At this point it is worth noting that there is no suggestion that the Complainant’s husband might be equally as busy as the Complainant herself).
At the hearing, I was invited to consider testimonials from members of the Minister of State’s Constituency Team attesting to the fact that he is excellent to work with, and for. I do not doubt the veracity of any such testimonials though did not deem it necessary to consider them.
I can understand the sentiment behind the Minister of State’s somewhat avuncular approach and I do not criticise his wish to make it known that he would be a person who could be depended upon to be flexible with a potential Private Secretary. However, it is incomprehensible that he was not advised that this could be done by way of making a simple declaration to the effect that it is his practise to be as flexible as he might reasonably be expected to be regardless of what any individual persons external commitments might be. This could have been done without reference to the individual’s own personal circumstances (whether that include a spouse, partner, child, parent or some other time consuming pastime). This could have been done without the need to drill down into the minutiae of a candidate’s home life, as happened here. It was ill-advised of the Minister of State to have so pointedly obtained information that had nothing to do with this candidate’s suitability for a position, and a position for which she had determined she was eligible to compete.
I doubt very much that this HR Officer, with his clear HR experience, had he known in advance of what was going to be asked, would have sanctioned it.
The Minister of State alone spoke the words and the post incident attempt to dress it up in a “Context” does not take away from the objectively Discriminatory nature of these remarks. In fact the Minister of State himself might be deemed to have acknowledged the inappropriateness of this line of questioning when he prefaced it with the comment “ .. I know I shouldn’t ask this but….” .
I do therefore have some sympathy for the HR Officer who is in the difficult position of trying to keep a newly appointed Minister under some sort of advisory warning. In preparing the Minister of State for this Interview this particular line of questioning could not have been sanctioned. The HR Officer could not have known the Minister was going to ask a series of questions so out of the norm. The Complainant indicated that she would have preferred an intervention then and there. This did not happen, and I agree with the Complainant that this is regrettable. I also accept that as a consequence, the Complainant’s interview was, in her mind, derailed.
Much was made of the subjective nature of this Interview. It certainly seems to have accounted for the lack of detail on the written notes made during the Interview and any deliberations and assessments made post Interview. The decision to select a final candidate was made I was told “in the round” and the decision had as much to do with interviewee personality, as competency. The Complainant, to her credit has accepted the unusual nature of this “competency based” Interview. She has, in fact, gone so far as to allow for the proposition that she may not have been the candidate that made the strongest “connection” with the Minister of State.
It is understandable that the Minister of State must use this Interview time as an opportunity to assess in however small a way, the personality of the individual. It is in fact the only opportunity he gets and it is very important where the position of Private Secretary works so closely to him. The Minister is bound to want to make sure that there is scope for a general good rapport. That said, there is a positive obligation on the interviewer to demonstrate some restraint so as not to offend the principles set down in the Employment Equality Acts.
It was suggested to me that the Minister had asked similar questions of the other two candidates. However there is no evidence to suggest that either of the other two witnesses were asked this particular series of questions or anything similar in nature. The Complainant was the only one of the three persons who was asked these particular questions. It also has to be noted that the other two candidates secured the two available positions and I cannot presume to know what their experience was.
There is a not inconsiderable amount of case law in this area. In fact, the Minister of State’s own comments and questions are quite reminiscent of those cases that gave rise to early decisions in this area – so outmoded are these comments of his. None of the case law was opened to me. In assessing same however, I note that the trend has been for findings of Discrimination to be made even where the person in fact given the job might have been highly suitable. Simply being asked discriminatory questions are sufficient grounds for bringing a successful claim.
The cases of Phelan -v- Michael Stein Travel (1999) ELR p58 and Elizabeth Barry –v- Board of Management Virgin Mary Schools DEC-E -2001-31 are both cases that illustrate this point.
For the avoidance of doubt I make the finding that the questions:
Are you a married woman?
Do you have children?
How old are your children?
Together with the observation that it “must be very busy” are Discriminatory questions and comments for the purposes of the Employment Equality Acts 1998 – 2004. They are objectively Discriminatory with a universally understood implication. The Discrimination is perpetrated on the grounds of both Civil Status and Family Status as set out in Section 6.
I find the Complainant was put in a difficult situation in a job interview by reason of probing questions which went to the heart of her married and family life which historically could not be considered gender neutral questions and indirectly associated her with the task of primary homemaker and therefore not as available as other less encumbered candidates might be.
I must therefore conclude that the Complainant has established facts in relation to prohibited conduct such that she has shifted the burden of proof to the Respondent to prove that there was no infringement. For the reasons outlined, I find that the Respondent has not satisfied this obligation.
I am further satisfied that the interview process was tainted by the fact that these questions were raised and allowed to be raised. The same or even similar questions were not asked of the other two candidates. I do not find that the Complainant was not ultimately selected by reason of the Questions asked and answered.
The Complainant was entitled to rely on the circular 24/2002 issued by the then Assistant Secretary that all civil servants can be confident that their rights under the Employment Equality Acts are guaranteed and no one will receive less favourable treatment than someone else because of their gender or Civil status or Family status.
The Complainant was entitled to rely on the assertion that the Civil Service is additionally committed to ensuring that equality of opportunity in certain key areas including recruitment and promotion would be observed.
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I note that the Complainant gave relevant evidence regarding the ongoing distress she has experienced in the workplace post interview. In these circumstances, and where the Complainant has made her case under the Employment Equality Acts, I award the sum of €7,500.00 compensation for the Discriminatory Remarks and Questions.
Dated: 25/10/17
Spring v Guardian Assurance
[1994] UKHL 7
“The policy reasons underlying the requirement that the defence of qualified privilege is only dislodged if express malice is established do not necessarily apply in regard to a claim in negligence. There may be other policy reasons in particular situations which should prevail. Thus, in relation to a reference given by an employer in respect of a former employee or a departing employee (and assuming no contractual obligation to take care in giving a reference) it is relevant to consider the changes which have taken place in the employer/employee relationship, with far greater duties imposed on the employer than in the past, whether by statute or by judicial decision, to care for the physical, financial and even psychological welfare of the employee.
As to the second question it is a relevant circumstance that in many cases an employee will stand no chance of getting another job, let alone a better job. unless he is given a reference. There is at least a moral obligation on the employer to give it. This is not necessarily true when the claim is laid in defamation even if on an occasion of qualified privilege. In the case of an employee or ex-employee the damage is clearly foreseeable if a careless reference is given; there s as obvious a proximity of relationship in this context as can be imagined. The sole question therefore, in my view, is whether balancing all the factors (Lord Bridge in Caparo) as to whether “the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”
Hedley Byrne does not decide the present case, but I find it unacceptable that the person to whom a reference is given about an employee X should be able to sue for negligence if he relies on the statement (and, for example, employs X who proves to be inadequate for the job) as it appears to
be assumed that he can; but that X who is refused employment because the recipient relies on a reference negligently given should have no recourse unless he can prove express malice as defined by Lord Diplock in Horrocks v. Lowe [1975] A.C. 135, 149-151.
In Balfour (supra) the Inspector who wrote the comment on the teacher ‘entirely unsuitable,” giving detailed reasons, concluded “check file to make absolutely sure I have the right person then ring Mrs. Brocklesby and inform her.” It seems to me extraordinary that, if the remarks were untrue about the named individual and written without malice (so that no claim lay in defamation) but that the teacher lost a job as a result, there should be no possibility for the employee to claim in negligence.
In Bell-Booth the New Zealand Court of Appeal emphasised that “to impose the law of negligence upon [the law as to injury to reputation and freedom of speech] by accepting that there may be common law duties of care not to publish the truth would be to introduce a distorting element” (emphasis added page 156 at line 40; see also at line 50 “true statements” and at page 157 line 15 “this class of case” which seems to have the same element of a truthful statement in mind). This, however, in my view is not the issue. The question is whether there should be a liability where the statements negligently made are untrue or the opinions are unfounded even if honestly believed to be true or honestly held. If the statements alleged to have been carelessly given are true then the considerations adverted to by the New Zealand Court of Appeal would seem plainly to be right. They do not, however, to my mind apply in a situation where the statements are untrue.
I do not accept the in terrorem arguments that to allow a claim in negligence will constitute a restriction on freedom of speech or that in the employment sphere employers will refuse to give references or will only give such bland or adulatory ones as is forecast. They should be and are capable of being sufficiently robust as to express frank and honest views after taking reasonable care both as to the factual content and as to the opinion expressed.
They will not shrink from the duty of taking reasonable care when they realise the importance of the reference both to the recipient (to whom it is assumed that a duty of care exists) and to the employee (to whom it is contended on existing authority there is no such duty). They are not being asked to warrant absolutely the accuracy of the facts or the incontrovertible validity of the opinions expressed but to take reasonable care in compiling or giving the reference and in verifying the information on which it is based. The courts can be trusted to set a standard which is not higher than the law of negligence demands. Even if it is right that the number of references given will be reduced, the quality and value will be greater and it is by no means certain that to have more references is more in the public interest than to have more careful references.
Those giving such references can make it clear what are the parameters within which the reference is given such as staling their limited acquaintance with the individual either as to time or as to situation. This issue does not arise in the present case but it may be that employers can make it clear to the subject of the reference that they will only give one if he accepts that there will be a disclaimer of liability to him and to the recipient of the reference.
Nor does it follow that if a duty of care is recognised in some situations it must exist in all situations. It seems to me that for the purposes of deciding whether the law recognises the duty as being fair, just and reasonable there may be a difference between the situation where it is an employer or ex-employer who gives a reference and the situation where a reference is given by someone who has only a social acquaintance with the person the subject of the reference. There may be difficult situations in between but these will, as is the common practice, have to be worked out in particular situations. That is really the purpose of the approach indicated by Lord Keith of Kinkel which I have set out above.
In his article, to which the Court of Appeal in the present case ([1993] 1 C.R. 412, 436) referred and with which they agreed, “Misleading References and Qualified Privilege” (1988) 104 L.Q.R. 191. 194 Dr. Andrew Demopoulos writes that to have recourse to the “typical concepts employed in some of the leading cases on negligently caused economic and other loss … for the purposes of establishing a duty of care in circumstances similar to those of Lawton v. B.O.C. Transhield Ltd. involves an extension of the law of negligence which flies in the teeth of express statements that anything less than malice in the making of a privileged statement cannot engage liability.”
I do not for my part consider that to recognise the existence of a duty of care in some situations when a reference is given necessarily means that the law of defamation has to be changed or that a substantial section of the law relating to defamation and malicious falsehood is “emasculated” (Court of Appeal [1993] 2 All E.R. p. 294j). They remain distinct torts. It may be that there will be less resort to these torts because a more realistic approach on the basis of a duty of care is adopted. If to recognise that such a duty of care exists means that there have to be such changes – either by excluding the defence of qualified privilege from the master/servant situation or by withdrawing the privilege where negligence as opposed to express malice is shown – then I would in the interests of recognising a fair, just and reasonable result in the master/servant situation accept such change.”
The precise relationship between the plaintiff and the four defendants has led to much argument. The judge accepted that the plaintiff had a contract
………….After a review of the authorities, the learned judge concluded that on the facts of the case a duty of care was owed to the plaintiff when the reference was given and that that duty had been broken. The reference was given in the name of Guardian Assurance but the judge accepted that the four companies were so closely associated that all were to be treated as owing a duty and as being responsible for the reference. It was inevitable that the appellant would not be offered a job by the other insurance companies to whom such reference was given. In my opinion the learned judge was entitled to find, as he did. that there was here a sufficiently approximate relationship between the companies on whose behalf the reference was given; the damage was clearly foreseeable: and it is fair, just and reasonable in such an employment situation for the law to recognise a duty on the part of the giver of the reference, and the person who within the employer’s organisation collates or provides information for the purpose of preparing the reference, to take reasonable care that the information was obtained and passed on with reasonable care. On this aspect of the case I think the judge was right: duty and breach were established.
Genockey -v- Bank of Ireland
[2017] IEHC 498
Eagar J.
1. This case concerns a claim of misrepresentation, negligent misstatement, and breach of contract arising out of the plaintiff being offered the position of Administrator by the Defendant, its servants or agent.
Facts
2. On the 19th of July, 2013, the plaintiff emailed Ed Meagher, Senior Manager in the Loans Administration department of the defendant employer. The email sent by the plaintiff asked if Mr. Meagher would consider her C.V. for any upcoming positions. Attached to the email was her C.V., which set out amongst other things her educational history. Included in this information was the plaintiff’s leaving certificate results, which stated as follows: ‘1992-1997 – Holy Faith, Killester – 3 (honours) 4 (passes)’. In evidence, the plaintiff admitted that these results did not reflect what she had actually received in her leaving certificate. In reality, the plaintiff had received 4 passes and 3 fails in pass level subjects. She stated in evidence that she had forgotten over time what her results were, they went out of her head. She had never handed her leaving certificate results into any employer, as no previous employer had required leaving certificate results from her.
3. At the time of her emailing Mr. Meagher initially, no positions were available with the defendant employer. Mr. Meagher in email correspondence on the 15th of August, 2013, informed the plaintiff of this, but said that he would keep her C.V. on file in the event of a position opening up.
4. On the 19th of October, 2013, the plaintiff was contacted by agents of the defendant employer with a view to interviewing her for the position of Loans Administrator. She was asked to bring with her to interview the following documents – a completed and signed application form, and original proof of qualifications.
5. The plaintiff was interviewed on the 23rd of September, 2013. On this date she brought with her to the interview the relevant application form, however, she did not bring with her original proof of qualifications.
6. Several points regarding the application form completed by the plaintiff prior to interview are noted:
a. The application form states that all applicants will undergo a pre-employment screening process.
b. Additional documentation required of any successful candidate prior to commencing employment includes original documentation in relation to the required educational qualifications.
c. Moreover, the application form ends with a declaration to be signed by the candidate, which makes the following points:
“an offer of employment is subject to verification of educational qualifications, proof of identification […]
Any deliberate misrepresentation or omission could result in the withdrawal of any offer of employment (if successful), or in dismissal should employment have commenced.”
7. The plaintiff completed her interview and on 2nd of October, 2013, she received a phone call from Lynsey King. Ms. King works for the defendant employer in their recruitment department. Ms. King in evidence stated that she informed the plaintiff of her success at interview, and that she was being offered the job.
8. A point of dispute arises as to the precise wording utilised by Ms. King in offering the job to the plaintiff. The plaintiff contends that this was an unconditional offer, and she was asked when she could begin. The plaintiff in evidence stated that she was under the impression that the defendant employer wanted her to start as soon as possible. Ms. King stated that she does not specifically remember the conversation with the plaintiff on the phone. However, it is standard practice for her in making such phone calls to offer the job to the candidate, and if the candidate accepts the offer, she would inform the candidate that any offer from the defendant employer is subject to successful completion of pre-hire screening checks. This would include confirmation of documents and C.V.’s, which the plaintiff had not provided as of yet to the defendant, despite being asked to do so previously.
9. The plaintiff informed Ms. King that she would give her current employer two weeks’ notice, and the agreed start date for the plaintiff to commence employment with the defendant was set at 21st of October, 2013.
10. On 15th of October, 2013, the plaintiff received a call from Emma Wadding, servant or agent of the defendant. She informed the plaintiff that she would require a reference from the plaintiff’s current employer, as well as proof of educational qualifications. The plaintiff asked would her post leaving certificate results received from Marino College suffice, and on the 16th of October, 2013, she dropped these in to Ms. Wadding. She received a phone call from Catriona Delaney, servant or agent of the defendant employer on 17th of October, 2013, informing the plaintiff that her leaving certificate results were required before commencing employment. On this date, the plaintiff also received a job offer in the post from the defendant employer. This offer stated the following:
“I am pleased to formally offer you a position of Administrator as a fixed-term employee with the Governor and Company of the Bank of Ireland […] This offer is subject to receipt of two satisfactory references, one from a previous employer and one from your current employer, Medical Assessment, verification of your qualifications and the information you have provided on the Application Form.”
11. The plaintiff states that on the 18th of October, 2013, her partner collected her leaving certificate results from Holy Faith, and subsequently brought the results to the defendant employer’s recruitment office. Her then manager also provided a reference for the plaintiff to the defendant employer at approximately 2:30 pm that day.
12. The plaintiff later in the day received a call from a servant or agent of the defendant employer stating that the defendant employer could no longer offer her the position of Administrator, as she had failed Maths in the leaving certificate.
Submissions of the Plaintiff
13. The plaintiff’s claim is for damages for breach of contract, damages for misrepresentation and/or breach of warranty, damages for wrongful dismissal, damages for negligence and/or negligent misstatement and breach of duty of care. The central allegation of the plaintiff in these respects is that the defendant represented to her that she was receiving an unconditional offer of employment when she was phoned by Ms. King on 2nd of October, 2013, and that she was effectively advised to hand in her notice in her existing job, with a view to taking up employment with the defendant employer.
14. Counsel for the plaintiff argues that the court may find the defendant liable in contract and tort, citing Carey v. Independent Newspapers [2004] 3 I.R. 52.
15. He also cites the above judgment in support of the plaintiff’s claim for damages, and states that the court may look to what the plaintiff would have earned had she stayed in her position with her previous employer in awarding damages.
Submissions of the Defendant
16. Counsel for the defendant disputes that the offer made to the plaintiff on the 2nd of October, 2013 was an unconditional offer of employment. Ms. King in evidence that she informs the candidate that they should be aware that any offer is subject to the successful completion of pre-hire screening checks. He argues that the court should favour Ms. King’s evidence over that of the plaintiff’s. Ms. King’s evidence ought to be contextualised, in that her phone call was followed by a written offer from the defendant employer, which contained an express limitation, as set out above:
“I am pleased to formally offer you a position of Administrator as a fixed-term employee with the Governor and Company of the Bank of Ireland […] This offer is subject to receipt of two satisfactory references, one from a previous employer and one from your current employer, Medical Assessment, verification of your qualifications and the information you have provided on the Application Form.”
17. He states that there can be no doubting that the offer made verbally to the plaintiff and the offer repeated in writing, received on 15th of October, 2013 was subject to several requirements. The case is simply that the plaintiff did not comply with these requirements.
18. He states that it for the court to draw inferences as to the reality of her results handed in to the defendant’s recruitment office, and the leaving certificate results the plaintiff claimed to have received when she initially emailed her C.V. to the defendant employer for consideration. He also highlights the lateness of the plaintiff handing her results in to her employer.
19. To further strengthen the defendant’s claim that the job offer was subject to requirements, counsel points to the initial application form filled out by the plaintiff. First, the application form states that all applicants will undergo a pre-employment screening process. Secondly, the form states that additional documentation will be required of any successful candidate prior to commencing employment, including original documentation in relation to the required educational qualifications. The plaintiff failed to provide the defendant employer with this documentation. Furthermore, the declaration the plaintiff signed at the end of the application form, to which she attached her C.V. stated the following:
“an offer of employment is subject to verification of educational qualifications, proof of identification […]
Any deliberate misrepresentation or omission could result in the withdrawal of any offer of employment (if successful), or in dismissal should employment have commenced.”
20. The plaintiff declared the information she had provided, that she had received 3 honours and 4 passes in her leaving certificate exams, was true and accurate. In reality, the plaintiff had received 4 passes and 3 fails in pass level subjects in her leaving certificate exams.
21. Counsel for the defendant thus argues that any misfortune that befalls the plaintiff stems from her own failings: her failure to fill out the application form accurately; her failure to bring her results to the interview.
22. He states that on the facts, it is evident that no unconditional offer was made to the plaintiff. The likelihood of this is supported by the defendant’s standard hiring process.
Negligent Misrepresentation/Misstatement
23. In Carey v. Independent Newspapers [2004] 3 I.R. 52, Gilligan J. held that it was a fundamental term of the employee’s contract that she would not have to work in the mornings. The plaintiff in that case relied on the employer’s misrepresentation and acted to her detriment, as she would not have taken up employment with the defendant unless she could work out of the office at the agreed times.
24. In Forshall & Fine Arts & Collections Ltd. v. Walsh (Unreported, High Court, Shanley J., 18th June, 1997) Shanley J. stated that:
“A party seeking damages for negligent misrepresentation must establish that the representor failed to exercise due care in making the representation as a result of which representation the person to whom it was made was induced to enter into the particular agreement and suffered damage in consequence of the inaccurate representation.”
25. In King v. Aer Lingus Plc. [2002] 3 I.R. 481, it was held that there is a duty of care to avoid making negligent representations or statements in pre-contractual, negotiation stages, which will have the effect of inducing a person to act to their detriment by leaving a previous position.
Employer’s Right to Dismiss
26. In Sheehy v. Ryan [2008] 4 I.R. 258, Geoghegan J. held that an employer is entitled to dismiss an employee for any reason or no reason on giving reasonable notice, dependent on the contract, in the absence of clear terms of the contrary.
Decision
27. Applying Forshall & Fine Arts & Collections Ltd. v. Walsh (Unreported, High Court, Shanley J., 18th of June, 1997), the plaintiff has not established that the defendant failed to exercise a duty of care in making a representation to the plaintiff to enter into the agreement, acting to her detriment. At all stages of the hiring process, it was made clear that the job offer was conditional upon the plaintiff meeting certain requirements: in the declaration she signed at application stage; at interview stage; when she was offered the job on the phone; when she was sent a written offer in the post.
28. This Court believes the plaintiff when she states that she overstated her results unwittingly. However, in applying Sheehy v. Ryan [2008] 4 I.R. 258, it was made clear by the defendant employer that a term of any successful candidate’s employment would be that they meet specific educational criteria. Unfortunately, the plaintiff did not meet these criteria, and thus the defendant employer had the right to dismiss the plaintiff for this reason.
29. For all these reasons, the court cannot find in favour of the plaintiff. No damages arise.