DEC-E2003-035 Full Case Report

Gillen v Department of Health and Children (Represented by the Chief State Solicitor)

1. DISPUTE

1.1 This dispute concerns a claim by Mr John Gillen that he was discriminated against by the Department of Health and Children on the ground of age contrary to the provisions of the Employment Equality Act, 1998 when he was unsuccessful in two competitions for promotion to the grade of Principal Officer. He further claimed that the respondent operated a policy of non-promotion of officers aged over 50 years.

1.2 The complainant referred a claim to the Director of Equality Investigations on 25 May 2000 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 30 May 2000 to an Equality Officer. When circumstances prevented the original delegation from proceeding, the case was re-delegated on 6 March 2001 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 30 September 2002. Subsequent correspondence with the parties concluded on 8 April 2003.

2. SUMMARY OF THE COMPLAINANT'S CASE

2.1 The complainant was born in 1945, and was first recruited to the civil service in 1978, when he joined the National Manpower services of the Department of Labour as a Placement Officer. Following a competitive process in 1980, he was appointed as an Occupational Guidance Officer, which is set at Higher Executive Officer level. He was successful in an inter-departmental competition for promotion to Assistant Principal Officer in 1988 and was appointed to the then-Department of Health.

2.2 The complainant participated in an interdepartmental competition for promotion to Principal Officer in the Department of Education in 1990. There were fourteen applicants, seven of whom were placed on a panel. The complainant was placed fourth, but just two places were filled. In 1991, the complainant participated in another promotional competition, this time for the Revenue Commissioners. Of thirty-three applicants, fifteen were placed on a panel. The complainant was placed tenth, but just six persons were promoted. Also in 1991, the complainant participated in an interdepartmental competition.
Following an internal selection process, he was advised by the respondent department that he had "been placed on a panel of Assistant Principal Officers found suitable for promotion to Principal Officer. Your name is being sent forward to the Civil Service Commissioners as a departmental nominee". Following further interview by the Civil Service Commissioners, the complainant was not placed on the promotional panel.

2.3 In November 1999, the complainant participated in two further promotional competitions. The first of these was an interdepartmental competition with an initial selection process in the respondent department. The complainant was not one of the six successful candidates, chosen from a total of twenty-three applications. He pointed out that the successful candidates were aged between 49 and 35 years, while he was aged 54 at the time, and that five other applicants aged over 50 years were also unsuccessful. He said all of the successful candidates had less service and experience than he had.

2.4 The complainant then participated in an internal promotion competition. The twenty applicants were aged between 56 and 31 years, with seven being aged 50 or over. The successful candidate was 35 years of age, and was the second-youngest applicant. The complainant said that he had approximately twice the length of service at Assistant Principal Officer as the successful candidate. He also pointed out that the vacancy being filled was in the Personnel Management and Development Unit of the Department, and he said that he had significant and extensive experience in the personnel area, in both the
private sector and the civil service.

2.5 The complainant said that a procedure for internal competitions had been agreed between the Department of Health and Children and the Association of Higher Civil and Public Servants (AHCPS). He asserted that the procedure was not complied with in a number of respects, and pointed in particular to the provision that "personnel seeks assessments from supervisors. Supervisors must inform candidates of contents of assessments". The complainant said that he was never informed of the content of any assessment, and as far as he could establish none was carried out.

2.6 Despite having been deemed on several occasions in the past as being suitable for promotion, the complainant said he was unsuccessful in the competitions referred to in 2.3 and 2.4 above, and said that the successful candidates all had significantly less service and experience than himself. At no time during his term of employment with the respondent had he been informed that his work was unsatisfactory or that he was considered unsuitable for promotion. For this reason, he concluded that his age must have been a major contributing factor in his failure to be selected for promotion.

2.7 The complainant referred his concerns to the Equality Authority, who contacted the respondent regarding the matter. The complainant said that in its response, the respondent sought to suggest that he was not, or was no longer, considered to be a suitable candidate for promotion. He said that each of his supervisors during the period 1993 - 1999 had in fact considered he was suitable for promotion. More recently, in an assessment completed in 2000, his current supervisor assessed his overall performance as "significantly above the requirements" and went on to state "Mr Gillen is very effective and delivers very good results, despite having to work in an environment of severe staff shortages. His particular strengths include an excellent ability to analyse policy issues clearly, strong communication skills and organization of workload".

2.8 The complainant said that a further internal competition for Assistant Principal (higher duties) had been held more recently, for which he did not apply because of his belief that his age made it futile. There were thirty applicants, whose ages ranged from 56 to 28, with five candidates aged over 50 years. The five successful candidates were aged between 45 and 37 years. A subsequent competition for promotion from Higher Executive Officer to Assistant Principal Officer resulted in fifteen successful candidates, none of whom was aged over 50 years.

2.9 The complainant said he believed that these latter two competitions, together with those in which he participated, clearly demonstrated that there was a policy or practice within the respondent department which discriminated against older applicants and supported the case that he had been a victim of that policy. He pointed out that section 33 of the Employment Equality Act, 1998 permitted employers to take measures to reduce or eliminate the effects of discrimination against certain persons, specifically including persons who have attained the age of 50 years. The complainant said that not only had the respondent department not taken any such measures as permitted by and within the sprit of the Act, but on the contrary, had followed a practice of discrimination against such persons.

2.10 The complainant submitted, in the light of the foregoing, that he had been directly discriminated against by the respondent department by reason of his age in competitions for promotion contrary to the provisions of section 8 of the Employment Equality Act, 1998, and indirectly by reasons of a practice of nonpromotion of persons over 50 years of age contrary to section 31 (1) of the Act.

2.11 The complainant said that it was clear that the respondent no longer saw him as a person it wished to promote. In the circumstances, he submitted that the appropriate redress to be awarded in the event of his claim being upheld was financial compensation for both the loss of earnings suffered and the stress incurred as a result of the discrimination.

3. SUMMARY OF THE RESPONDENT'S CASE

3.1 The respondent asserted that the competitions complained of took place on 22 November 1999 and 26 November 1999. As the complainant first referred his complaint to the Equality Tribunal on 25 May 2000, the respondent submitted that his referral was out of time in accordance with the provisions of section 77 (5) of the 1998 Act, which provides that a claim may not be referred after the end of a period of six months from the date of occurrence or the most recent occurrence of the act to which the claim relates. Without prejudice to this contention, the respondent denied there was any policy or practice of discrimination on grounds of age, and rejected the complainant's claim.

3.2 The respondent said that the grade of Assistant Principal Officer was the first rung of senior management in the Civil Service. There were two main avenues to promotion to the next grade of Principal Officer, external and internal. External competitions were operated by the Civil Service Commission and comprised three types of competition: confined, decentralisation and interdepartmental. Confined competitions were normally for posts requiring specialist skills such as IT or HR, and applications would normally be forwarded
directly to the Civil Service Commission. The Civil Service Commission would then hold interviews and chose the successful candidates. Decentralisation competitions were normally for vacancies outside the Dublin area, and applications would be compiled in the various departments and forwarded to the Civil Service Commission, which would then interview the candidates. For an interdepartmental competition, an internal selection process took place in each department and a panel was established in accordance with Department of Finance instructions. This panel was then forwarded to the Civil Service Commission for final selection.

3.3 The respondent said that internal competitions, confined to officers serving in the department, were carried out by means of consistory. This was a deliberative process whereby members of the Management Advisory Committee (MAC - the Secretary General, Chief Medical Officer, all Assistant Secretaries and Directors) heard submissions from Principal Officers on behalf of applicants for promotion. The process would involve an invitation to Assistant Principal Officers to apply, a request for assessment forms to be completed by applicants' Principal Officers, and a compilation of CVs and assessment forms for MAC. At a meeting of MAC, each Principal Officer would make a presentation supporting the candidacy of between three and five applicants. All Principal Officers were free to support the candidacy of any applicant, and a Principal Officer was not confined to supporting only or any of the applicants from his or her own area. MAC would then deliberate and nominate the successful candidate(s), and candidates would generally be notified of the outcome of their applications.

3.4 In relation to the complainant's applications for promotion in 1990 and 1991, the respondent said that these were decentralisation competitions, for which the number of applicants would be less than for other competitions. The respondent said that in 1993 the complainant applied for an interdepartmental competition, but was not successful at the preliminary interview stage. He had been assessed by his then-Principal Officer as unsuitable for promotion and his then-Assistant Secretary concurred, saying he would be unhappy if the complainant were assigned to him on promotion. The respondent said that from 1991 to 1993 there was a consistent disimprovement in the ratings given to the complainant for his annual increment assessment, and suggested that in subsequent years the view of his performance continued to be relatively poor. The respondent said further that in April 1995, the complainant completed a Staff Performance Review with his then-Principal Officer. Records showed that the complainant signed the standard form beneath the statement "I am satisfied that I have been fully advised of my current assessment in the context of a structured discussion of my role, performance and training needs". The respondent claimed that this indicated it was clear in mid-1995 the complainant was fully aware of his performance and training needs as a serving Assistant Principal Officer in the department.

3.5 Referring to the first competition which is the subject of this complaint, the respondent said that in November 1999 an assessment was completed for the complainant which indicated that he had achieved a B rating in five categories and an A rating in the sixth. His overall rating was given as B. The respondent department had been assigned a levy of six candidates to be sent forward to the Civil Service Commission stage, and the complainant was not successful in the preliminary interviews. The respondent said he appeared to place considerable weight behind the fact that he had greater seniority than the six successful candidates, and that five other applicants aged over 50 years were also unsuccessful. The respondent suggested that this was a selective interpretation of the statistical data from the competition, and pointed out that twelve applicants aged less than 50 years were also unsuccessful.

3.6 The ages of the twenty-three applicants ranged from 55 to 31 years, the average age being 39 years. The ages of the successful candidates ranged from 49 to 35 years, the average being 40 years. The complainant had suggested that, as the successful candidate aged 49 years was already in receipt of a higher duty allowance, s/he could reasonably have been expected to be successful. The respondent rejected this and said that the selection criteria for any competition were based on competence rather than expectation, and it contended that the successful candidates represented a fair reflection of the age profile of the candidates.

3.7 The respondent asserted that the interview board which selected the candidates had confirmed that the Guidelines supplied by the Civil Service Commission had been used in carrying out the interviews. Recognition was given to the experience and qualifications of the applicants. No written records were available and no formal marking scheme had been used, but the respondent supplied the following details of the qualifications and experience of the six successful candidates and the complainant:

3.8 With regard to the subsequent internal competition for assignment to Assistant Principal Officer (higher duties), the respondent noted that the complainant had asserted that he had no knowledge of an assessment being carried out. The respondent said that an assessment had been carried out in respect of the interdepartmental competition referred to above. The internal competition was scheduled within days of the previous assessment being completed, and a decision was taken that all of the assessments completed for applicants for both competitions would be submitted again. This decision applied to all applicants. The respondent said it was not aware of whether the assessment had been shown to the complainant. The Principal Officer involved did not recall if it had been, but had said it would be his normal practice. In the absence of any knowledge on the part of the respondent that this part of the agreed procedures may not have occurred, the respondent had not been aware of the complainant's dissatisfaction with the procedures followed.

3.9 The respondent noted that the complainant asserted that the successful candidate was aged 35 years and had half of the complainant's service in the Assistant Principal Officer grade. However, the respondent said that the twenty applicants ranged in age from 56 to 31 years, with the average age being 34.5 years. The respondent said the successful candidate matched this age profile, and his qualifications, range and relevance of experience and overall suitability made him a clear choice.

3.10 The respondent noted that the complainant did not participate in a subsequent internal competition because he felt his age made it pointless. The respondent said that records again indicated that the successful candidates reflected the age profile of the applicants. There were thirty applicants aged between 56 and 29 years, and the average age was 43.4. The six successful candidates were aged from 45 to 37 years, the average age being 41.3. The respondent pointed out that four of the successful candidates were aged over 40 years. In respect of the Higher Executive Officer promotion competition referred to by the complainant, the respondent said that officers in a lower grade were more likely to have a younger age profile so the comparison was erroneous. In that instance there were forty applicants aged between 61 and 28 years, with an average age of 41 years. The panel of fifteen successful candidates comprised officers aged between 50 and 29 years, with an average age of 38 years.

3.11 The respondent concluded by saying that there was no policy or practice of discrimination on grounds of age within the department. Its contention was that the complainant had not adequately supported his claim. It asserted that it was the practice of the department to promote essentially on competence with due recognition of experience, and it pointed out that there were currently eleven serving Assistant Principal Officers with more seniority than the complainant.

4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY
OFFICER

4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.

4.2 The complainant alleged that the respondent discriminated against him both directly and indirectly on the ground of age contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include age. Section 8 provides that

(1)In relation to-
(a) access to employment...
(b) conditions of employment...
(d) promotion or re-grading...
an employer shall not discriminate against an employee or prospective employee...

The time limit

4.3 The respondent's first argument was that the complainant's referral was out of time, in accordance with the provisions of section 77 (5) of the Act, which states
... a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

4.4 The question of interpretation of time limits was dealt with in the High Court case of McGuinness v Armstrong Patents (1990 1 IR 289), which involved an action claiming damages for negligence. The relevant time limit was specified by the Statute of Limitations Act, 1957, which provided that such an action "shall not be brought after the expiration of three years from the date on which the cause of action accrued". McMahon J described it as a well-settled rule of English law that the date of the event is excluded in computing the period, where a period of time in a statute is defined as being "from" a particular event. On that basis, a period of three years from the accrual of the cause of action would expire on the third anniversary of the accrual. The judge said, however, that he could not see any way of achieving uniformity between that rule of law and section 11 (h) of the Interpretation Act, 1937 which states
Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period, and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period...

4.5 I note that the second of the competitions referred by the complainant occurred on 26 November 1999. The consequence of this is that a six-month period commencing on 26 November 1999 concludes on 25 May 2000. As the referral of this claim was made to the Equality Tribunal on the latter date, I am satisfied that this was within the six-month time limit specified. Since section 77 provides for referral of a sequence of events, of which the most recent is within the specified time limit, I find that the competition held on 22 November 1999 may also be investigated as part of this referral.

The complainant of discrimination against the complainant

4.6 The traditional approach taken to complaints of discrimination on the original ground of sex in the case law of the European Court of Justice, and sex and marital status in the caselaw of the Labour Court and Equality Officers, has been that once a complainant establishes a prima facie case of discrimination, the onus then moves to the respondent to rebut the presumption of discrimination. This common law approach has become the statutory requirement in complaints of gender discrimination in employment following the transposition of Council Directive 97/80/EC into Irish law on 18 July 2001 by means of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001). The Regulations provide that [w]here in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary.

4.7 The Employment Equality Act, 1998 introduced seven new grounds of discrimination, not drawn directly from European Union Directives or European Court of Justice case law. The Council Directive and the Regulations mentioned above are not directly applicable to grounds other than gender, but this approach appears to me to be fully consistent with the development of discrimination case law. It was the approach of the Labour Court in the 1998 Act case Revenue Commissioners and O'Mahony and others (EDA033), and I intend to apply it to this complaint on the age ground.

4.8 The first requirement, therefore, is for the complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to him or her. In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) (AEE/99/8), the Labour Court said "...this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging this evidential burden. If she does, the respondent must prove she was not discriminated against on grounds of her gender. If she does not, her case cannot succeed."

Promotion competitions

4.9 The complainant's first allegation of discrimination focuses on his lack of success in two competitions held in November 1999. The first of these was an interdepartmental competition, and the complainant was not successful in being placed on a six-person panel established by the preliminary interviews carried out in the respondent department. The second internal competition resulted in just one successful candidate. The complainant pointed out that the successful candidates in both competitions were all aged less than 50 years, and that he had more service in the grade of Assistant Principal Officer than they did. He also claimed that he had never been told that his work was unsatisfactory, and that he had been found suitable for promotion on a number of previous occasions. The respondent contended that the age profile of the successful candidates reflected the age profile of the applicants in each competition. It also said that the complainant's performance had deteriorated following his promotion to Assistant Principal and that he had been found unsuitable for promotion in 1993.

4.10 Having examined the evidence provided to me relating to the two competitions, I note that the average ages as calculated by the respondent were incorrect. In the interdepartmental competition, there were twenty-three applicants, whose ages ranged from 55 to 31 years. The six successful candidates ranged in age from 49 to 35 years. The respondent described the average age of applicants as 39 years, and that of successful candidates as 40 years. In fact the average age of applicants was 43.6 years. Similarly in the internal competition, the respondent calculated the average age of the twenty applicants - who ranged in age from 56 to 31 years - as being 34.5, with the successful candidate being aged 35 years. In fact the average age of the applicants was 44.75 years.

4.11 It is regrettable that the respondent's calculations are not reliable, but I am not convinced that the calculation of average age is the correct way to approach these statistics. If one takes as an example a competition with five applicants, two aged 40 years, one aged 35 years, and two aged 30 years, one can calculate the average age as being 35 years. This may imply a probability that the 35 year-old should get the job. An alternative analysis suggests that it would be more reasonable to assume that he or she would have a 20% chance of being successful, all other things being equal. Applying the same logic to the interdepartmental competition, I note that six of the candidates were aged 50 years or over. This comprised 26% of the applicants, which could translate into 1.6 successful candidates. In fact, no applicant over the age of 50 years was successful. Conversely, 21% of the applicants were aged less than 40 years, but they comprised 50% of the successful candidates.

4.12 It is not possible to apply the same logic to the outcome of the internal competition, as there was just one successful candidate. I note, however, that in support of its claim that the successful candidate was the clear choice for the position, the respondent included the information that he was in receipt of a higher duties allowance for the final four months he served as an Assistant Principal Officer, prior to his ultimate promotion to Principal Officer by the Civil Service Commission. While displaying an element of self fulfillment, in the sense that the competition in which he was selected for higher duties is this internal competition for which the respondent said he was the clear choice, it is noteworthy that the respondent rejected the complainant's comparable assertion that a successful candidate aged 49 years could have been reasonably expected to be successful in the interdepartmental competition because he was already in receipt of a higher duties allowance. I note also that the respondent confirmed in a letter to the complainant, although not to me, that it was agreed practice with the AHCPS to make officers on allowances substantive in the higher grade as vacancies arose.

Absence of interview notes

4.13 It is a matter of particular concern that no written records exist in relation to either the interviews for the interdepartmental competition or the MAC discussions for the internal competition. The respondent said that the Interview Board had regard to guidelines set out in Department of Finance Circular 23/99, which announced the scheme for interdepartmental promotion. The Circular stated, in relation to the second-stage Civil Service Commission interviews, that applicants would be considered suitable for promotion only if the interview board was satisfied they possessed the skills necessary to undertake Principal-level duties. Many examples of such skills were given in the Circular including critical analysis of complex issues, planning and organisation of large blocks of work, motivation and management of people and effective communication. It is clear that the scheme of promotion envisaged such competencies as essential to the selection of suitable candidates.

4.14 The respondent department, however, had no formal marking system in place. There was no method of determining how the various competencies were evaluated, nor how the applicants were marked in the course of the interview. It is clear from the table provided by the respondent (at 3.8 above) that the complainant was the candidate with the most experience as an Assistant Principal Officer. His service in the Civil Service was equal to that of two of the successful candidates, and greater than that of three of them. His educational qualifications were at least equal to those of two of the successful candidates. In the absence of a formal marking scheme, the respondent can offer no justification for his nonselection.

4.15 The Labour Court and Equality Officers have criticised the practice of destroying interview notes many times in the past. In April 2003, in the case National Museum of Ireland, Department of Arts, Heritage, the Gaeltacht and Islands and the Attorney General v O'Dowd (DEE033), the Labour Court said "The Court notes that it was the policy of the Civil Service and Local Appointments Commission at the time, that the notes and records of the interview board would be destroyed and that only the markings would be retained. Only the comments of the chairman of the board were retained. This failure to retain notes and records of the other interviewers is a matter of concern as the keeping of notes and records are of great assistance to the Court when investigating allegations such as the complainant's. The Court has commented on this practice of destroying interview notes in the past and expects that if it has not already ceased, it will cease in the future." In this instance, I must consider that the absence of interview notes, as well as the lack of proper assessment criteria, strongly supports an allegation of discriminatory practices.

4.16 The same issues of concern arise in relation to the consistory to select an internal candidate for promotion to Assistant Principal Officer (higher duties). The process is described at 3.4 above. At the hearing in this claim, I suggested to the respondent that the fact that each Principal Officer was restricted to supporting the candidacy of a limited number of applicants meant that an applicant may not have any support. It was agreed that this was the case. It is clear that success at a consistory is based solely on the willingness of a Principal Officer to support a candidacy, combined with the same Principal Officer's ability to convince MAC that his or her preferred applicant is the best. Success has nothing to do with the applicant's own ability. It is also apparent, from the respondent's own description of the process, that an unsuccessful applicant may not even be informed of the outcome. This mechanism of promotion can only foster a climate where discrimination can flourish.

The complainant's performance

4.17 With regard to the respondent's assertion that the complainant's performance had deteriorated over time, I obtained copies of all of the available promotion and increment assessments covering the period 1991 to 2002. The conclusions in the four increment assessments were that the complainant deserved an overall rating of "above average", except for one assessment which gave an overall rating of "average" while marking two of the performance indicators as "above average". In three of the four promotion assessments, the complainant was assessed as either "well qualified" or given an overall rating of "B". The complainant also sought and obtained written testimonials from three Principal Officers with whom he worked during the period 1994 to 1998. Since that time, one has retired, one has been promoted to Assistant Secretary in another department and the third has become the chief executive of a State body. Each of them confirmed that he considered the complainant to be suitable for promotion to Principal Officer.

4.18 The only promotion assessment which found the complainant unsatisfactory was carried out in December 1993, and concluded that he was not suitable for promotion. I note that an increment assessment carried out in May 1993, just seven months previously, had concluded that the complainant's performance was above average. The complainant pointed out the unlikelihood of such deterioration in performance within such a short period, and suggested that the negative assessment resulted from a difference of opinion which he had had with his then-Assistant Secretary just a few weeks previously. While not attributing the assessment to malice on the part of his superior officers, he said that he believed the difference of opinion had influenced the rating, whether consciously or otherwise.

4.19 The complainant underwent a Staff Performance Review in April 1995, covering the period April 1994 to April 1995. The respondent implied there had been shortcomings, in claiming (see 3.5 above) that the complainant's performance and training needs had been brought to his attention. While he did indeed sign a statement to that effect, there is nothing in the Review form to indicate the nature of those needs, if any. The Principal Officer signed a statement that he had "discussed with this officer his/her performance during the period under review and advised him/her of my current assessment". The nature of that assessment is not given. I note that the Principal Officer involved is one of the persons from whom the complainant received a written testimonial, confirming his suitability for promotion. I am therefore satisfied that there is no negativity implied in the Staff Performance Review. As a result, it is clear that the December 1993 assessment is totally inconsistent with all of the others. I consider it reasonable to conclude that it emanated from the conflict that arose between the complainant and his then-Assistant Secretary.

Promotion statistics

4.20 The complaint of indirect discrimination hinges on the complainant's assertion of a policy or practice within the respondent department that persons over 50 years of age are not promoted. However, if such a policy exists within an organisation, it constitutes direct discrimination because it is based directly on the protected ground. For the purposes of investigating this particular claim, I asked the respondent to provide statistics demonstrating the ages of all persons promoted to the grade of Principal Officer since 18 October 1999, the commencement date of the 1998 Act. I must note here that the respondent supplied me with incorrect information, which I unwittingly copied to the complainant for his observations. It was only when I received his response that I discovered that he had obtained further information through the Freedom of Information Act, 1997 that indicated the information was incorrect. The respondent, in its letter to the complainant, said "...I must notify you of some errors in the list supplied to you by the Equality Officer via this Department...". The respondent did not do me the courtesy to advise me that the information was incorrect.

4.21 I note from the corrected information that twenty-three persons were promoted from Assistant Principal to Principal Officer from November 1999 to April 2003. Excluding eleven candidates promoted by the Civil Service Commission and assigned to the respondent department, the department itself selected and promoted twelve candidates. I note that three of these officers were aged 50 years at the date of promotion, but each of these had been assigned to higher duties between two and three years previously. Indeed, the respondent's corrected information provided to the complainant re-labelled these officers as being "made substantive in the grade" of Principal Officer rather than being promoted. In combination with the more detailed information made available in relation to three competitions for promotion to Principal Officer and one competition for promotion to Assistant Principal Officer, it would appear that the respondent department has not promoted an officer aged over fifty years in well over three years.

4.22 This is particularly striking when one considers the respondent's own argument that the Principal Officer grade is the second rung of senior management in the Civil Service. Persons applying for promotion to Principal Officer must have served a minimum of at least eleven or twelve years in more junior grades before they can become eligible. It is rare that an officer will attain each intervening grade as soon as he or she is eligible. Any knowledge of the Civil Service would suggest that the majority of applicants for promotion to Principal Officer would in fact have many more years' service than the minimum, and therefore there is a likelihood that successful candidates would be more likely to be older.

4.23 Of course, this does not imply that successful candidates must be older. I cannot agree with the complainant's emphasis on the fact that he had longer service than the successful candidates. Length of service per se cannot qualify a person for promotion, and while it could be argued that the quality and breadth of a person's experience are relevant to promotion, it is likely that seniority-based promotion would risk being indirectly discriminatory against younger applicants. Similarly, I do not find that the complainant's reference to section 33 of the Act to be convincing. Section 33 permits an employer to take positive action to facilitate the integration of into employment of persons aged 50 years, but does not require it, and the failure to take positive action may not be invoked as discriminatory. In any case, the complainant is already in employment, and failure to achieve promotion cannot be included in "integration into employment". As section 33 is an exception to the 1998 Act, it must be strictly construed.

4.24 In the O'Mahony case (referred to at 4.7 above), the Labour Court said it was "satisfied that the selection process was conducted in a manner which fell short of the standards of objectivity, fairness and good practice that could reasonably be expected in the circumstances...The union...has adduced evidence, which the Court has accepted, to show that the age of the candidates had become a factor of relevance in the selection process. The Court has also accepted that the statistical evidence adduced...indicates a link between the age of candidates and their success or failure in the competition. The Court is thus satisfied that there is, prima facie, a discernible connection between the deficiencies identified in the selection process, the anomalous result in the case of the complainants and the age of the complainants. Taken in combination these matters constitute primary facts which are of sufficient significance to raise a presumption of discrimination."

4.25 In this claim, I have found that the respondent was incorrect in its assertions that the age profile of the successful candidates reflected the age profile of the applicants. I am satisfied that the mechanisms of promotion used in both competitions were inadequate and inappropriate, and that the evidence available demonstrates that the complainant was at least equal in experience and qualifications to several of the successful candidates. I have concluded that the complainant was in fact suitable for promotion, contrary to the assertions of the respondent. I also note that the promotion statistics support the view that officers over 50 years of age have not been promoted by the respondent department. Considering all of the above evidence and my conclusions in relation to each issue, I am satisfied that the complainant has established a prima facie case of discrimination on the age ground and the respondent has failed to rebut the claim.

4.26 In considering the redress to be awarded, I have taken into account the complainant's submission in relation to the matter. I am conscious also that ordering that the complainant to be promoted could result in an unfair result, where another candidate was objectively more suitable for promotion. In the circumstances, I consider that monetary compensation is the appropriate remedy. Section 82 (4) provides that the maximum compensation that may be awarded is 104 times the weekly salary being received by the complainant at the date of referral of a complaint. I am satisfied that approximately half of the permitted maximum is the appropriate level of compensation.

5. DECISION

5.1 Based on the foregoing, I find that the Department of Health and Children discriminated against Mr Gillen on the ground of age, contrary to the provisions of section 8 of the Employment Equality Act, 1998, by virtue of an apparent policy of non-promotion of persons aged over 50 years.

5.2 I hereby order that the respondent:
(i) pay the complainant the sum of €40,000 in compensation for the consequences of discrimination;
(ii) ensure that internal interview boards have formal interview training, apply strict promotion criteria with adequate marking schemes and keep comprehensive interview notes;
(iii) cease its policy of promotion by consistory and introduce an objective and transparent mechanism which allows all applicants to be considered on their own merits.

_____________________
Anne-Marie Lynch
Equality Officer
29 August 2003