DEC-E2003-024 Full Case Report

Mr Thomas O'Connor vs GTS Reprographics Ltd (Represented by Egan O'Reilly, Solicitors)

1. DISPUTE

1.1 The dispute concerns a claim by Mr Thomas O'Connor that GTS Reprographics Ltd discriminated against him on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 and in contravention of section 8 that Act in the conduct of a competition to appoint a salesperson at its Cork office.

2. BACKGROUND

2.1 The complainant, who is 50 years of age, responded to an advertisement published in July, 2002 in a national newspaper seeking "young, confident, enthusiastic" applicants for a salesperson position in the Cork office of GTS Reprographics Ltd. He was not called for interview.

2.2 The complainant referred a complaint to the Director of Equality Investigations on 20th August 2002 and following receipt of submissions from the parties, the Equality Officer held a joint hearing on 6th March, 2003. Arising from the hearing the respondent furnished additional information regarding other applicants for the disputed position on 18th March, 2003 and the complainant furnished comments on this material on 25th March, 2003.

3. SUMMARY OF THE COMPLAINANT'S CASE

3.1 The respondent published an advertisement in a national newspaper on 26th July, 2002 seeking applicants for a salesperson for its Cork office. The advertisement (Appendix 1) described the role of the salesperson i.e. to promote digital presentation services and supplies to architects and other professionals, to develop strong relationships with new and existing clients and to promote new project collaboration services. Under personal requirements the advertisement listed " - young, confident, enthusiastic with excellent communications skills - good educational background with at least 2 years successful business to business (B2B) experience in a sales role - some IT knowledge would be an advantage"

3.2 The complainant holds an Associate Degree in Arts (History and English), an Associate Degree in Applied Science (Mechanical Drafting and Design Technology), a Bachelor of Business Administration Degree (Marketing) and attended a course in teaching English as a foreign language (TEFL). He has held various positions in the USA from 1972 to 1991 in the weapons and aerospace industries including, inventory control, tool control supervisor and chief of production control. The complainant has worked in Ireland from 1991 onwards in various positions including five years running his own furniture retailing business and held other manufacturing supervisory positions in the computer chip and medical devices industries. He currently is employed as a substitute teacher teaching computers and business studies in a vocational school in Cork. The complainant replied to the advertisement and sent his C.V. to the respondent. The respondent wrote back to the complainant on 8th August, 2002 stating that it had started interviewing candidates "whose recent experience appears most relevant" and that the complainant was not being called for interview "at this time" but that his application would be kept in mind if the need arose to broaden their search.

3.3 The complainant states that on receipt of the letter of 8th August, 2002 from the respondent he referred a complaint to the Director of Equality Investigations and also sent the prescribed forms (ODEI 3 and 4) requesting information to the respondent but received no reply. The respondent subsequently re-ran the advertisement on 30th August, 2002 with the word 'young' removed. The complainant states that the use of the word 'young' in the original advertisement clearly indicates that it was the respondent's intention to exclude candidates who were 'not young' i.e. applicants who were 'middle aged' or 'old' and that the use of the word 'young' in the advertisement constitutes discrimination on the age ground. The complainant refers to the powers of the Equality Authority pursuant to Section 85(1)(d) of the 1998 Act to refer a complaint to the Director and states in his submission that "I wish to complain that a publication or display has been made in contravention of Section 10 of the Act". The complainant goes on to state "the respondent discriminated against me on the age ground, in terms of Sections 6(1) and 6(2)(f) of the (1998) Act, by causing an advertisement to be published in contravention of Section 10(1) of that Act.". The complainant also refers to the Equality Officer's decision in The Equality Authority v Ryanair¹.

3.4 The complainant rejects the respondent's contention that he did not have recent relevant experience and in particular "business to business" sales experience. The complainant states that he is eminently qualified for the position and that his five years of running his own furniture retailing business gave him just that type of experience. He also refers to his IT skills, evidenced by the fact that he teaches computer courses to second level students, which were specifically referred to in the advertisement i.e. "some IT knowledge would be an advantage". The complainant argues that the only reason why he was not called to interview was because of his age.

4. SUMMARY OF RESPONDENT'S CASE

4.1 The Respondent denies that any discrimination on grounds of age took place in the advertising and filling of a salesperson vacancy in its Cork office. The respondent states that it decided to advertise a vacancy for a salesperson when the incumbent announced his resignation in July, 2002. The respondent states that it had hoped to recruit a sales representative who would ultimately have the potential to succeed the General Manager (Cork office) who is approaching retirement age and who has indicated a wish to reduce his role. The respondent's representative states "clearly it would have made no sense for our client to recruit a person in the same age bracket and it was in this context that the word 'young' appeared in the initial advertisement".

4.2 The respondent states that the reason why the complainant was not called to interview was that he did not have the relevant sales experience. The respondent states that the complainant's CV did not give any details as to his age and "accordingly we find it somewhat unusual that a complaint of discrimination based on age is made by him in such senario".

4.3 The respondent states that three candidates aged 32, 29 and 36 whose CV's indicated that they had B2B sales or senior account management experience were interviewed. One candidate in particular was considered suitable but his salary expectations exceeded the salary on offer and no appointment was made on foot of these interviews.

4.4 The respondent re-published the advertisement with the word 'young' removed at the behest of the Equality Authority whose attention had been drawn to the original advertisement. The respondent states that the business entered a downturn in August, 2003 and that it decided to 'take a break' from the public competition and to fill the post internally. A 48 year old member of staff who was employed as a van driver was then appointed to the position on a trial basis.

5. CONCLUSIONS OF THE EQUALITY OFFICER

5.1 The matter for consideration is whether or not GTS Repropgraphics discriminated against the complainant on the age ground in terms of Section 6(2)(f) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act. In making my decision in this case I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.

5.2 The complaint as presented alleges discriminatory treatment on two counts (1) discriminatory advertising and (2) discriminatory treatment in the selection process. The complainant has referred to the powers of the Equality Authority pursuant to Section 85(1)(d) of the 1998 Act and to a relevant Equality Officer's decision in the Equality Authority v Ryanair regarding discriminatory advertising. As the complainant appeared to be confusing the powers of the Equality Authority (i.e. the power to refer a complaint to the Director in relation to discriminatory advertising) with the rights of an individual to refer a complaint to the Director under Section 77 where discrimination in a specific instance is alleged, I pointed out at the hearing that the matter of discriminatory advertising was in the first instance a matter for the Equality Authority and not an individual complainant. As I am not dealing with a referral by the Equality Authority pursuant to Section 85 I shall not be making any decision or order in relation to the advertisement. Evidence was given that the
Equality Authority had been in contact with the respondent after the initial advertisement containing the word 'young' appeared and that the respondent subsequently re-ran the advertisement without the word 'young'. I believe that the respondent will in future avoid the use of the word 'young' in its advertised criteria however any criteria subsequently applied should be transparent and relevant to the position to be filled.

5.3 Notwithstanding my comments above, I am satisfied that the publication of the initial advertisement specifying 'young' as a requirement constitutes prima facie evidence of an intention on the part of the respondent to discriminate in the selection process against older applicants and I regard the reasoning outlined in the Equality Officer's decision in the Equality Authority v Ryanair as applicable here also.

5.4 With regard to the allegation of discriminatory treatment in the selection process I formed the opinion that neither the complainant nor the respondent were being entirely frank in the matter. I believe that the complainant, who has a number of third level qualifications and a wide range of experience in different fields, was not genuinely interested in the salesperson position as advertised but having seen the word 'young' listed as a requirement, took offence and submitted an application in order to highlight what he believed was a clear intention on the part of the respondent to discriminate against older applicants. When I asked the complainant at the hearing would he take up the position if I were to order the respondent to offer him the position he stated that he had no trust in the respondent and that he would not take up employment with them. I believe that this was, in all probability, the position from the outset.

5.5 The respondent, in an effort to explain why it had advertised for a 'young' candidate, presented the argument that it was seeking to recruit a potential replacement for the General Manager of the Cork office who was nearing retirement and stated that it would not make any sense to recruit someone of similar age. When questioned at the hearing, the respondent gave evidence that the General Manager had some nine years to serve before reaching the normal retirement age of 65. I found it difficult to believe that the respondent was recruiting a salesperson as a potential replacement for the General Manager in nine years time, particularly as there was already a serving complement of approximately 14 staff at the Cork office and given the fact that the van driver was appointed to the position when no suitable external candidate was recruited on foot of the advertisement. I am of the opinion that this appointment, having regard to the age of the appointee, was made after the Equality Authority drew attention to the use of the word 'young' in the advertised criteria and to serve as a defence against any allegation of discrimination on the age ground.

5.6 The respondent states that the complainant's date of birth was not given on his C.V. and that it was not aware of his age. As the complainant started work in 1972 and completed his first degree course in 1976 it was evident that he must have been at least 47 years of age in 2002 and I reject this line of argument.

5.7 With regard to the complainant's qualifications and experience, the respondent states that the reason Mr O'Connor was not called for interview was that he did not have the relevant business to business sales experience and that his age never came into consideration. While the complainant argues that his wide range of business experience and in particular the five years in which he operated his own furniture retailing business gave him the necessary skills, I consider that the respondent is correct in saying that it was several years since the complainant operated his own business and that he did not possess the type of recent sales experience which the respondent was seeking. At the time of the competition the complainant was working as a substitute teacher in a vocational school and teaching English as a foreign language to students in his own home. In the course of the hearing I asked the respondent to furnish details i.e. age, qualifications and experience of the other candidates and the respondent subsequently copied all of their CV's to me. I extracted the relevant details from the CV's and copied them to the complainant (Appendix 2). As the advertisement would in all probability have deterred older applicants it is important that this be kept in mind when considering this information. It is evident however that within the cohort of 16 applicants, the respondent was selective towards those who were currently employed in a sales capacity and many younger candidates who did not possess this experience were not called to interview. I consider that on the balance of probabilities the complainant would not have been called to interview, regardless of his age and I find therefore that the respondent did not discriminate against the complainant on the age ground.

6. DECISION

6.1 On the basis of the foregoing, I find that GTS Reprographics did not discriminate against Mr O'Connor of the age ground in contravention of the provisions of Section 8 of the Employment Equality Act, 1998 in its failure to call him for interview for the position of salesperson at its Cork office.

Raymund Walsh
Equality Officer
12 June, 2003

APPENDIX 1

Advertisement for the Salesperson position at GTS Reprographics Ltd.

APPENDIX 2

Age, qualifications and experience of other candidates

* where an age was not given the estimated age based on year of completion of second level education is shown

1 The Equality Authority v Ryanair DEC-E-2000-014