FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : REVENUE COMMISSIONERS - AND - LIAM O'MAHONY, TERENCE SMITH, MICHAEL LOVETT & TOMÁS �'TUAMA (REPRESENTED BY PSEU) DIVISION : Chairman: Mr Duffy Employer Member: Mr Carberry Worker Member: Mr. Somers |
1. Appeal against Equality Officer's Decision Dec-E2002-018.
BACKGROUND:
2. A Labour Court hearing took place on the 24th of October, 2002, in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's determination:-
DETERMINATION:
This is an appeal by the Revenue Commissioner (The Respondent) against the decision of an Equality Officer in a claim alleging discrimination on the age ground brought by the Public Service Executive Union (The Union) on behalf of its members Mr Liam O’Mahony, Mr Terence Smith, Mr Michael Lovett and Mr Thomas O’Tuama (The Complainants)
The complaint related to the conduct of a competition to create a panel of Officers suitable for assignment to enforcement duties with the respondent, in which the complainants participated. The four complainants were, at the material time, serving as Higher Executive Officers on Customs and Excise / Revenue Mobile Service Duties in the Offices of the Revenue Commissioners. The complainants were not appointed to the panel. They claimed that this arose in circumstances amounting to discrimination on grounds of age, in terms of Section 6(2)(f) of the Employment Equality Act 1998 (The Act) and in contravention of Section 8 of that Act.
Having investigated the complaint the Equality Officer found that the respondent did discriminate against the first, third and fourth named claimant on grounds of their age and in contravention of the provisions of Section 8 of the Employment Equality Act 1998, in not appointing them to the panel. The Equality Officer also found that the respondent did discriminate against the second named claimant on grounds of his age and in contravention of the provisions of Section 8 of the Act 1998 in the manner in which he was questioned at interview. Having so found the Equality Officer went on to make orders directing the respondent to take such measures as were necessary to place the complainants in the position that they would have been in if it was not for the discriminatory treatment to which they had been subjected.
In the case of the first and third named complainant the Equality Officer ordered that they be appointed to enforcement duties and that measures be taken to ensure that any disadvantages that they may have suffered by not being appointed at the time of the competition be redressed. In the case of the fourth named complainant (who at the time of the investigation had already been appointed from an earlier competition) the Equality Officer ordered that the terms of his appointment be adjusted in line with the more favourable terms of the later competition and that measures be taken so that any disadvantage that he may have suffered be redressed.
In the case of the second named complainant it was ordered that the respondent should reconsider his standing with regard to the competition and if necessary, afford him the opportunity to be re-interviewed for selection by a different interview board. The Equality Officer further ordered that the respondent should pay each of the complainants compensation in the amount of €2,000 for the distress which they suffered in the matter.
The respondent appealed to the Court against that decision.
BACKGROUND:
In summary the background to the dispute (which is fully and accurately recited in the decision of the Equality Officer) is that in December 1999 the respondent initiated the process for the creation of a single panel to which officers considered suitable for enforcement duties could be appointed. There were 15 geographical locations at which the posts were expected to be located. Assignment to the post would be for aperiod of 5 years subject to a probationary period of 1 year and subject to the officer continuing to fill the requirements of the job. There were fifty-three applicants for inclusion on the panel, including the four complainants herein. Each candidate was assessed by the head of the branch or district in which they worked (this was the Principal Officer to whom the candidate was responsible). They were then interviewed by an interview board appointed by the respondent for the purpose of the competition. Thirty officers were deemed suitable and were placed on the panel.
BASIS OF THE COMPLAINTS.
The facts upon which the Union’s complaints are grounded can be categorised under three main headings as follows
(1) Alleged unfairness in the selection process and the irrationality of the outcome.(2) Statistical evidence showing a significant disparity in the success rate of candidates in the same age bracket as the complainants relative to those of younger age, and
(3) A discriminatory question put to the second named complainant indicating that age was a factor influencing the interview board in their decision.
The Court considered each of these assertions in turn. In so doing the Court has had regard to the submissions made by the parties and to the totality of the evidence adduced. The Court has also had the advantage of observing the demeanour of the witnesses in giving their testimony. What follows is an abridgment of the evidence adduced together with the findings and conclusions of the Court.
THE SELECTION PROCESS
The Principal Officer Assessments:
As part of the selection process, candidates were first evaluated by the Principal Officer to whom they were responsible. The results of these evaluations were recorded on what is described asForm B. On this form the candidates were rated asexcellent, very good, good, average, or below averageagainst twelve separate criteria. The Principle Officer was then expected to indicate how the candidate had demonstrated his or her capacity to meet the requirements of the post for which the competition was being held. Finally, the Principle Officer was asked to indicate the applicants fitness for assignment to the post to be filled asexceptionally suitable, highly suitable, suitable or not suitable. The form was then signed by the Principle Officer and by the applicant.
The following notes appeared at the foot of this form;
1. “If a candidate is considered unsuitable he or she should be informed accordingly.2. Signature of the applicant confirms that he or she has seen the completed assessment.3. The purpose of this assessment is to make available to those who will be considering assignment to the post the best information possible concerning the officer’s suitability for the post. It is, of course, only one of the factors that will be taken into account when considering assignment to the post. Nonetheless, it will constitute an important input to the decision making process and should be completed in a careful and considered manner.”
The first, third and fourth named complainants were ranked as exceptionally suitable by their Principal Officer. The second named claimant was ranked as highly suitable.
There appeared to be some confusion amongst the witnesses who gave evidence before the Court on behalf of the respondent as to the purpose of this assessment. The respondent’s personnel officer told the Court that the purpose of the assessment was to assist in drawing up a short list in cases where there were a large number of candidates.
Later, in the course of his evidence, the Chairman of the interview board which interviewed the complainants (who is himself a Principle Officer) told the Court that he had completed such forms from time to time and he understood that they would represent an objective assessment of the candidates for the benefit of the interview board. On being asked to clarify his earlier evidence, the personnel officer told the Court that the assessment had a dual purpose in that it would be used for short listing and for the information of the interview board. However, the Court was told that in this competition the assessments were not taken into account by the interview board in their evaluation of candidates. This, they said, was because of concerns as to the consistency and quality of the assessments which some of the interview board believed were inflated and unreliable.
The Court finds is strange that the interview board would disregard assessments of this nature. It is clear from the notes to the assessment form (quoted above) that it constitutes an important input in the decision making process and for that reason should be completed in a careful and considered manner. The Court must assume that those who completed these forms acted responsibly and gave their assessment based on the candidate’s work performance as observed over time.
The Court has great difficulty in accepting the respondent’s assertion that the evaluations (which were made by different Principal Officers) were inflated and unreliable. If that were the case it might reasonably have been expected that the respondents would have pursued the matter further with those who had completed the assessments. There was no evidence of them having done so.
The evidence indicated that the interviews lasted for no more than 40 minutes. It was difficult to see how candidates who were ranked as exceptionally suitable for the posts being filled by their senior manager could be found, on the basis of such a short interview, to be unsuitable. Moreover, it would appear from the overall result of the competition that the assessments by the Principle Officer was not at variance with the outcome of the competition in the majority of cases. A total of thirty-five of the candidates were rated as exceptionally suitable. Of these twenty-five were successful and ten unsuccessful.
Conduct of the Interview:
The Court was told that candidates were to be assessed at interview under six headings, namely
1. Leadership skills,
2. Analytical skills,
3. Information Technology,
4. Work Management,
5. Communications skills,
6. Adaptability and learning skills.
There were three members of the interview board. It was agreed that each of them would test candidates on two of these qualities. It was agreed that the Chairman would test candidates on leadership and analogical skills. A member of the board, Mr Harrowhill would test candidates on information technology and work management skills and another member, Ms. Croasdell, would test on communication skills and adaptability/learning skills.
The Court was told that each quality listed would be marked equally. There was no upper limit on the number of candidates who could be placed on the panel. The interview board were authorised to determine the pass mark. Candidates reaching this mark would be deemed suitable and this in turn determined the number who would be placed on the panel.
In relation to the conduct of the interview, the Union contended that between 70% and 80% of the time was taken up by questions from the Chairman. The Chairman disputed this and said his questioning would have taken between 20/25 minutes in a 40/45-minute interview. This, it was pointed out was because the Chairman would deal with preliminary issues at the start of the interview and would ask a wrap-up question at the end.
The Union further alleged that the questions asked by the Chairman, in interviewing the complainants, did not relate to the skills that he had taken responsibility for testing. The Chairman pointed out that he did not preface his questions by indicating that he would be testing for a particular skill. He said that the questions put to candidates were intended to elicit an answer which would indicate the degree to which they possessed the skills for which they were being tested.
The Union further contend that the fourth named complainant was challenged by the chairman in relation to his work performance in the course of his interview in a manner which, they say, was inappropriate and off putting. It appears that the Chairman had available to him activity reports in respect of some candidates, including three of the complainants, and they were questioned in relation to those reports at interview.
In the case of the fourth named complainant the Chairman challenged him on the lack of seizures and prosecutions in relation to vehicle registration tax in his area of responsibility. The fourth named complainant told the interview board that his unit were detecting unregistered vehicles and were dealing with such cases by issuing warnings and expecting compliance thereafter. The Chairman believed that this was not the correct approach and an exchange took place between the interviewer and the interviewee on this point.
Another aspect of the forth-named complainant’s interview, which was raised in evidence, related to a widely published operation some years previously which resulted in the seizure of a large quantity of illegal drugs off the Cork cost. This lead to the arrest and conviction on indictment of those found in possession of the drugs. The fourth-named complainant was involved in the leadership of the team of customs officers responsible for this operation. He and his colleagues later received a commendation from the Revenue Commissioner responsible for customs for their role in this operation.
The fourth-named complainant told the Court that he highlighted his involvement in this operation as evidence of his leadership skills. He said that the interview board seemed indifferent to his presentation. In the event, he received 40marks for leadership skills. The Chairman of the interview board told the Court that the fourth-named complainant exaggerated his involvement in this operation, which he considered to be peripheral.
The second named complainant also gave evidence of his experience at interview. This witness said that he found the interview board uninterested in the answers he gave to questions which were put to him. He also said that he could not recall any question that could have related to his leadership or analytical skills.
The Court has given careful consideration to the evidence in relation to the conduct of the interviews. There was, to say the least, a sharp difference of recollection and perception as to how the interviews were conducted between the complainants who gave evidence on the one hand, and the members of interview board on the other. The Court believes that much of the criticism of the process which was voiced by the complainants may have been influenced by their understandable disappointment at the result. For this reason the Court believes that it should approach this evidence with caution.
The Court does, however, fully accept that the Chairman appeared to dominate the interviews in terms of the length and the forcefulness of his questioning. Each of the qualities for which candidates were being tested carried equal marks in the competition and each member of the interview board was expected to examine the candidates on two of these qualities. It would seem to the Court that in these circumstances it was less than satisfactory for one member of the board to spend at least double the amount of time questioning candidates as that available to each of the other members.
The Court also fully accepts that the manner in which the fourth-named complainant’s interview was conducted was unsatisfactory. This candidate was carrying out his duties in a manner which was clearly approved of by his superiors as is evident from the rating which he received from his Principal Officer. If this candidate’s mode of enforcement was not in accordance with the regulations it would be a matter for his immediate managers to address.
There is no evidence of any such concern on the part of those to whom this complainant reported and it seems to the Court that in those circumstances it was inappropriate for the interviewer to take him to task on this aspect of his work performance during interview. The Court has no doubt that this adversely affected the fourth-named complainant’s performance at interview and reflected badly on him in the eyes of the other members of the interview board. The Court is further satisfied that the fourth-named complainant was not given a fair opportunity to expand on his role in the Cork drug seizure and to offer this as evidence of his leadership skills. This was probably due to a predetermined view that his role was peripheral, a view which is clearly at variance with that of the Revenue Commissioner who considered it appropriate to commend that role.
There is, however, no evidence to suggest these unsatisfactory aspects of the fourth-named claimants interview was replicated in the case of the other complainants. Nonetheless it does tend to undermine the respondents contention that the process was conducted with fairness and adherence to good practice.
Marking:
Candidates were marked out of one hundred in respect of each of the six qualities listed, giving a total possible mark of 600. A space was provided on the marking sheet, opposite the mark for each quality tested, in which comments on the performance of the candidates could be recorded. Candidates were required to have an aggregate mark of 300 before they would be deemed suitable for inclusion on the panel.
The marks achieved by the four complainants are remarkably similar. The first named complainant received 260 marks, the second named complainant received 265, the third named complainant received 260 and the fourth named complainant received 250 marks. The composition of the aggregate mark was also remarkably similar in the case of each of the complainants. The first, third and fourth complainants received either 40 or 45 marks in respect of each quality being tested. In the case of the second named complainant he received 50 marks in relation toleadership skills and 55 marks for management skills but was credited for 35 marks for information technology.
The space for comment in respect of the candidate’s performance under each skill was not completed. Instead in the case of each of the four complainants the column was overwritten by an overall comment, which was inserted at the end of the interview process. The statement contained on each of the marking sheets is broadly similar but does differ in some significant respects in the case of the second-named complainant.
In the case of the first named complainant the statement is to the effect that;“the candidate did not convince the board that he had the necessary leadership, management and analytical skills for the post covered by the competition”. There was no mention of the other skills which were tested in the competition and in respect of which the candidate in question received broadly the same marks as in the case of leadership, management and analytical skills.
In the case of the second named complainant the statement is to the effect that;“the candidate did not convince the board that he had the necessary management and leadership skills for the post covered by the competition.”This is a significant comment. In fact the candidate in question received 50 marks for leadership and 55 marks for management skills. No mention was made of the other skills tested in the competition.
In the case of the third named complainant the comment was;“the candidate did not convince the board that he had sufficient leadership, management and analytical skills necessary to perform adequately the requirements of these posts”.Again there was no mention of the other skills.
In the case of the fourth complainant the comment was“the candidate did not convince the board that he had the requisite leadership, management, analytical skills necessary to perform adequately the requirements of this competition”.
The Court notes that in all cases leadership skills, analytical and management skills were highlighted as being the areas where the candidates were deficient. There was no mention of information and technology skills, communication skills and adaptability/learning skills. These comments are not consistent with the respondent’s assertion that each quality tested was regarded as being of equal value in the competition. The Court also has difficulty in reconciling the marks awarded to the complainants in respect of the qualities tested with the rating given by their Principal Officers on the corresponding criteria in the assessment.
The Union also contrasted the marks awarded to the fourth-named candidate in this competition to those which he received in an earlier competition for a similar post to which he has since been appointed. In the present competition this complainant received an overall mark of 41.6%. In the earlier competition with a different interview board marking against the same qualities he received a mark of 87.6%. In the Courts view such a degree of disparity also calls for an explanation
STATISTICAL EVIDENCE:
The Union contends that a statistical analysis of the outcome of the competition shows that candidates in the same age bracket as the complainants fared worse than candidates of a younger age. They say that the difference is significant and is evidence of discrimination against older candidates, including the complainants. The Equality Officer accepted that this was the case based on his analysis of the success rate of candidates aged 51 years and over relative to those aged 50 years and under.
The respondent disputed the accuracy of the Equality Officers conclusions. They say that there is no statistically significant difference in the success and failure rate of candidates in different age brackets. In support of their contention they called Professor Philip Boland to give evidence on this point.
This witness is Professor of Statistics at UCD and has held that post since 1986. He had previously been Head of the Statistics Department of the University for 15 years. He holds a BA, MA, PhD and a DSC and has been associated with the Mathematics and Statistics Department of the University since 1971.
A detailed and comprehensive report was submitted by the witness and was expanded upon in oral evidence. It is unnecessary to recite the details of Professor Boland’s analysis because his conclusions were not seriously challenged. Taking the success and failure rates for candidates in the age bands 20-30 years, 31-40 years, 41-50 years, 51-60 years the witness concluded that the results are not statistically sufficient to reject the hypothesis of no association between age and success in the competition.
Statistical evidence was also called on behalf of the complainants. Professor Don Barry who is Professor of Statistics at the University of Limerick presented a written report, which was augmented by oral evidence. Professor Barry has a PhD in statistics from Yale University, which he obtained in 1983. He then lectured in statistics at University College Cork for 13 years and was appointed to Professor of Statistics at the University of Limerick in 1996.
Professor Barry carried out a somewhat different analysis of the results than that carried out by Professor Boland. He looked at the success and failure rate of candidates of 53 years and older (the age bracket into which the complainants fall) as against the same for candidate aged 52 years and younger. Professor Barry concluded that the discrepancy between the success rates of candidates in the two age bands would be a rare event for an allocation system free from age discrimination. He concluded that since such a large discrepancy did happen the only conclusion is that the system of allocating places on the panel did in fact, discriminate against candidates who were 53 years and older.
Professor Barry also carried out a statistical analysis of the success and failure rate of candidates who were rated as exceptionally suitable by their Principle Officer in the age band 53 years and over and 52 years and younger. It was found that 83% of candidates of 52 years and younger were successful. In the case of those 53 years and older the figure was 17%. On that basis the witness concluded that there was strong evidence of a difference between the two observed success rates based on age.
Finally, Professor Barry analysed the outcome for candidates not rated exceptionally suitable. He found that there was a 33% success rate for candidates aged 52 years and younger and no candidate aged 53 and older, who was rated at less than exceptionally suitable, was successful. The witness did, however, qualify his findings, on this aspect of the exercise which he had undertaken, by pointing out that the failure was most like due to the small number of candidates in this age bracket.
Professor Barry did not take issue with Professor Boland’s findings nor did Professor Boland take issue with Professor Barry’s findings. It transpired that they both used the same test for statistical significance, which is known as “Fishers One Sided Exact Test”.
The difference between the conclusions reached by the two expert witnesses was in relation to the age bands which they examined. Professor Boland’s analysis placed candidates in 10 years bands. This was the table used by the Equality Officer. Professor Barry looked at the experience of those in the same age band as the complainants compared to those who were of a younger age. Both witnesses agreed that if they had carried out the analysis that the other had carried out they would probably have come to the same result.
Both witnesses agree that the size of the sample measured in this case is of sufficient significance to produce an accurate result. It is thus a question of whether the appropriate reference point is that of under and over age 50 or under and over the age of the youngest complainant.
Whilst the matter is not without doubt, the Court feels that the analysis produced by Professor Barry is more apposite to the case under investigation than the analysis undertaken by Professor Boland. The Court therefore accepts that the statistical evidence supports the union’s contention that the age of candidates was a factor in the selection process.
DISCRIMINATORY QUESTION AT INTERVIEW:
The second named complainant gave evidence that at the close of his interview the Chairman asked him “What are you going for this job at this stage”. The witness told the Court that he felt absolutely convinced the question referred to his age. He stated that he did not feel good about the interview and he did not think that the members of the interview board were interested in him. He said that when the question was asked it dawned on him why this was so. He said that he had noted the question immediately after the interview.
When questioned on this point in the course of his evidence, the Chairman of the interview board denied that there was any ageist connotation in his questions, nor was the age of candidates a factor which influenced the outcome of the process in any way. The witness told the Court that each of the candidates was asked a wrap up question at the close of the interview. He said he would have varied the wording from one candidate to another but that the thrust of the question was the same in all cases. Whilst he could not recall the exact words which he used in the case of the second-named complainant, the witness said that there was no ageism implied or intended in the question. Later in his evidence the witness said that the second-named complainant had told the interview board that he was enjoying his job and he (The Chairman) said, “before you leave, your looking for a change in direction can you explain why”.
The other two members of the Interview Board had no recollection of the verbatim content of the wrap up question put to the second named complainant but did confirm there was no element of ageism involved in any of the questions. They too confirmed that the age of candidates was not a factor in the competition.
The Court has given very carefully consideration to the evidence of the second named complainant and to that of the witnesses for the respondent on this point. On balance, the Court prefers the version given by the second named complainant. He was quite clear in his recollection of the exact words used which, he said, he noted immediately after the interview. The evidence for the respondent was that the question put was“before you leave, your looking for a change in direction can you explain why” or similar words to that effect.
A question in those terms could not have been interpreted in the way in which the second-named complainant interpreted the wrap up question which was put to him. It was forcefully put to the witness in cross-examination that the question related to the degree of job satisfaction which he appeared to derive from his then current assignment. He remained adamant that no such question was asked and that his recollection was clear as to the content and meaning of the question which he was asked.
The Court is satisfied that therecollection of the witnesses who gave evidence for the respondent on this point is deficient or relates to a question asked of some other candidate.
Turning to the import of the question, the Court finds it difficult to accept than it could have any meaning other than that attributed to it by the second named complainant. The Court is satisfied that it did relate to his age.
It is not suggested that the other complainants were asked a similar question at interview. Nonetheless the Court accepts that apart from the question being offensive and discriminatory in the case of the person to whom it was put, it also indicates that, probably subconsciously, the age of candidates had become a matter of some relevance in the selection process.
The Court is therefore satisfied that this is evidence of relevance to the whole case and not just to the complaint of the second-named complainant.
BURDEN of PROOF:
It is accepted on behalf of the respondent that the burden of proof in the instant case should be the same as that applicable in cases involving discrimination on the gender ground. It is further accepted that the appropriate test for determining if and when the burden of proof should shift to the respondent is that formulated by this Court inSouthern Health Board v Dr. Theresa Mitchell (AEE/99/8) In that case the Court held as follows: -
“A claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination.
It is only if those primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
In applying this test the Court must consider if the complainants have established the primary facts on which they place reliance in furtherance of the complaint of discrimination. If those facts are established the Court must then consider if they are of sufficient significance to raise a presumption of discrimination. If that evidential burden is not discharged the complainants cannot succeed. If that burden is discharged it then becomes a matter for the respondent to prove, on the balance of probabilities, that the complainants’ age was not a factor that influenced their exclusion from the panel.
Has the Burden of Proof Shifted?
On the basis of the evidence, and for reasons already referred to, Court is satisfied that the selection process was conducted in a manner which fell short the standards of objectivity, fairness and good practice that could reasonably be expected in the circumstances.
Counsel for the respondent submitted in argument that even if the Court concluded that there was unfairness in the selection process this would not constitute prima facie proof of discrimination. For the reason that follows the Court does not consider it necessary to address this submission in the instant case and would reserve it position on the correctness of that proposition.
The Union does not ground its case solely on its criticisms of the selection process. It 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 on behalf of the complainants 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 theage of the complainants
Taken in combination these matters constitute primary facts which are of sufficient significance to raise a presumption of discrimination. The onus thus shifted to the respondent to prove, on the balance of probabilities, that there was no discrimination on grounds of age.
The Respondent's Explanation.
It seems to the Court that in order to rebutthe presumption of discrimination the respondent must, at minimum, offer a creditable explanation for the marks actually awarded to the complainants in the competition and for the disparity between the favourable assessments which they received from their Principal Officers and their placement in the competition.
In cross-examination, witnesses on behalf of the respondent were pressed by the representative of the complainants to explain how the marks were arrived at. They simply said they were based on the perception they had of the candidates.
The Court has not been furnished with contemporaneousnotes of the interviews and it is assumed that none exist. Moreover, as previously observed, the column provided on the marking sheet for recording comments after the marks awarded for each criterion was not completed in the case of any of the complainants. This column was simple overwritten with statements to which reference has already been made.
In the circumstances of this case, the Court would have expected the respondent to be in a position to give a credible explanation for the marks awarded beyond a mere statement that they represented the subjective assessment of the individuals conducting the interview.
With regard to the disparity between the Principal Officers assessments of the complainants and their ranking in the competition, the Court finds the explanation offered by the respondent to be equally unsatisfactory. The Court does not consider it sufficient for the respondent to merely assert that the assessments made by its own senior offices were inflated and unreliable.
There was also a suggestion by witnesses who gave evidence for the respondent to the effect that those who carried out the assessments did not understand the standard that had been set in the competition. There was also a suggestion that they did not know that a single panel was in contemplation and that this might have affected their approach to the assessments.
There was no evidence to support these suggestions. If the Principal Officers misunderstood what was expected of them they could have been produced to give evidence to that effect. They were not called. The opinion of those who did give evidence as to what may have influenced others is not evidence which this Court could accept.
It is perfectly clear that the assessment was an important part of the selection process and those completing the forms were expressly instructed to do so with care. It must be assumed that the results of the assessment, as recorded on the forms, represented the Principal Officers’ objective evaluation of the individual’s performance as observed by them over time. The Court could not lightly accept that the Officers who assessed the complainants, acted other than honestly and with due care.
For these reasons the Court cannot accept the explanations proffered by the respondents on this point.
Conclusion.
The onus is on the respondents to prove, on the balance of probabilities, that the reason for not appointing the claimants to posts for which they applied was unrelated to their age. The respondent has not discharged that onus and the complainants are entitled to succeed.
Accordingly, the Court finds that the complainants herein did suffer discrimination on grounds of their age. The Court upholds the decision of the Equality Officer both with regard to his findings and the redress ordered.
The Court notes that the second, third and fourth named complainants have been assigned to enforcement duties with effect from various dates since the hearing before the Equality Officer. However, this does not, in the Courts view, affect the appropriateness of the Orders made by the Equality Officer.
The appeal herein is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
27th January, 2003______________________
HMCD/MB.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Helena McDermott, Court Secretary.