Ni Murchada -v- The Mercy Hospital(represented by IBEC)
1. CLAIM
1.1 The case concerns a claim by Ms. Roisin Ni Murchada that the Mercy Hospital, Cork, discriminated against her on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 in contravention of section 8 of the Act in relation to access to employment.
2. BACKGROUND
2.1 The respondent advertised for the post of Locum Lab Assistant. The closing date for the competition was 6 December 2002. The complainant applied for the position and hand delivered her application to the reception desk at the hospital on the closing date. The complainant was subsequently informed that her application had missed the deadline. She was not considered in the short listing process and she alleges that she was excluded on the grounds of her age. The respondent denies the complainant's allegation of discrimination and submits that she was not considered as the Recruitment Office received her application on 9 December 2002 which was after the closing date.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 7 May 2003. On 19 January 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. A submission was received from the complainant on 25 February 2004 and from the respondent on 13 April 2004. A joint hearing of the claim was held on 6 July 2004.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant submits that an advertisement for a locum lab assistant was published in the Irish Examiner on Friday, 22 November 2002. The requirements as stated were:
Leaving Certificate or equivalent, literacy skills and familiarity with computers. The complainant had obtained an Honour's Science Degree in 2001 and she felt that she met the requirements. She was available to start whenever required.
3.2 The complainant submits that in her letter of application, she listed subjects such as chemistry, zoology and plant science undertaken as cognates in UCC, some for several years. She felt that these would have relevance as showing some familiarity with laboratory procedure, equipment, etc. She also listed work that while specific to Geology would indicate some experience with the methodology of data processing. References were given as required, one from former employment and the other from college.
3.3 Because of Christmas posting patterns and to be certain that her application was received on time, it was hand-delivered to the Mercy Hospital shortly after noon on Friday, 6 December 2002. The complainant submits that it was delivered to the person at reception and she was made aware that it contained a job application with 6 December as the deadline. The receptionist wrote something on the envelope. In the absence of a stated cut-off time for acceptance, she assumed that office hours would apply, i.e. 5 or 5.30pm.
3.4 The complainant submits that on 19 December, she received a letter from the redspondent stating that her application had missed the deadline. She submits that was factually incorrect. The letter was dated 12 December and the envelope was franked 18 December.
3.5 The complainant submits that she complied with the educational requirements, supplied references as specified and met the deadline. She submits that the only logical conclusion for being weeded out at that point was that she was considered too old. She submits that her age was indicated by the details that her Leaving Certificate was done in 1972. She considers that the letter dated 12 December from the respondent was held until 18 December so as to:
- possibly delay it further in the post;
- the proximity to Christmas limited opportunity for any query on her part since the position would presumably have been filled and it would have been too late for her to do anything about it.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent submits that it advertised a position for Locum Lab Assistant in the Irish Examiner on Friday 22 November 2002. The method of application as stated in the advertisement was to send details to the Recruitment Office by 6 December 2002. The Recruitment Office received the complainant's application on 9 December 2002 which was after the closing date. A response letter was issued to the complainant on 12 December 2002 indicating that she had missed the deadline.
4.2 On 13 January 2003, the respondent received a phone call from the complainant enquiring why she had received a letter informing her that she had missed the deadline. It was explained to her that if the Recruitment Office does not receive applications by the published deadline, they are obliged to exclude them from the competition. It submits that it often receives late applications for recruitment competitions and it is its policy to exclude such applicants. It submits that its policy should not be confused with an ageism issue.
4.3 The respondent submits that it is an equal opportunities employer and that it does not discriminate on the basis of age. It employs persons of different ages and it refutes the complainant's allegation of discrimination. As part of its commitment to the principles of equality, all of its advertising carries an equality statement. It submits that its recruitment procedures are transparent and that it provides feedback to all candidates who request it.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against her on the age ground in relation to access to employment. I will therefore consider whether the respondent directly discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Direct discrimination on the age ground
5.2 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(f) that they are of different ages, ...... (in this Act referred to as "the age ground"),
Caselaw on establishing a prima facie case of direct discrimination
5.3 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the age ground. The Labour Court in the case of The
Southern Health Board v. Dr. Teresa Mitchell1 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these 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."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.4 More recently, the Labour Court stated in relation to the burden of proof in a discriminatory dismissal case on the age ground:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."2
The evidence in this case:
5.5 The respondent advertised for the position of Locum Lab Assistant which was stated to be for a period of four months. The closing date was specified as 6 December 2002. The advertisement stated that the application procedure was to "send 3 hard copies of your CV together with a letter of application and names and numbers of 2 referees to The Recruitment Office, Mercy Hospital, Grenville Place, Cork, Ireland" The advertisement also stated that the application could be e-mailed. The complainant submitted that her application was hand delivered to reception on the closing date. The respondent by letter dated 31 May 2004 indicated that it had no record of the complainant's application being hand delivered to reception, however, it accepted that she submitted her application as she contended. The complainant's husband gave evidence at the hearing that he hand delivered the application to reception on 6 December 2002. He appeared to have a clear recollection of the delivery and I have no reason to disbelieve his evidence in this matter. I therefore, accept that the complainant's application was hand delivered to the reception desk of the respondent within the timeframe for receipt of applications. The respondent stated that at that particular time, the procedure when post was hand delivered to reception which was for the Human Resources Department was that the receptionist might ring Human Resources to let them know and have someone pick it up or they might phone the porter to pick it up. The procedure which applied depended on the time of day, for example if the porters were on lunch, then the receptionist phoned Human Resources.
5.6 The respondent submitted that 46 people applied for the position and 8 were called for interview. It submitted that all applications submitted by the advertisement closing date were collated for the shortlisting process. Criteria set out by the hospital prior to the position being advertised determined which applicants were called for interview. The respondent in its letter dated 29 June 2004 stated that shortlisting criteria were used as a reference tool in the shortlisting process. The Chief Technologist - Biochemistry Laboratory drew up the shortlising criteria which were Qualifications, Experience, Person Specification and Additional. The Chief Technologist also shortlisted the candidates. The respondent submitted that no systematic marking system was employed in the short-listing process and no notes were made during the process. The Chief Technologist in evidence at the hearing stated that the position entailed predominantly clerical duties. She submitted that they were looking for someone who was a team player, diligent, who paid attention to detail, had experience in a medical environment, a good temperament and a willingness to learn. She determined the candidates to be interviewed by deciding who would most likely have the skills based on the information contained in their CVs. The respondent submitted at the hearing that over the last fourteen months, it interviewed 12 applicants in the 45-49 age group, 9 applicants in the 50-59 age group and 1 applicant in the 60 plus age group for various posts. From those interviewed, it hired 2 applicants in the 45-49 age group and 5 applicants in the 50-59 age group.
5.7 The complainant in the course of the hearing raised the issue of how her CV was retained when the CVs of those not shortlisted were not retained. The respondent submitted that it had a file which retained the CVs of candidates who missed the application deadlines for posts. She also raised the issue of why the envelope containing the letter dated 12 December 2002 was not franked until 18 December. The Recruitment and Training Officer explained that the reason could have been that the letter may have been awaiting her signature if she had been out of the office.
Late delivery of the complainant's application to the Recruitment Office
5.8 The complainant believes that the reason that she was excluded from the short listing process was her age and not that her application for the post was delivered late. I have found that the complainant's application was delivered to the reception of the respondent body within the specified timeframe. A question therefore arises as to what happened subsequently that it was only received in the Human Resources Department on Monday, 9 December 2002. It appears that the respondent does not have a clear system for dispersing post received at reception which is designated for the Human Resources Department. Any post received at reception is not recorded and could at that time arrive in Human Resources by one of two methods, i.e. porter or collection by HR personnel. I consider that it was not unreasonable for the complainant to believe that because she had hand delivered her application to reception that it would be considered as received within the specified time. However, it may have been prudent for the complainant to ascertain whether it could be hand delivered directly to the Recruitment Office as specified in the advertisement or have obtained a receipt from the person who received her application at reception. The complainant's application was only received in Human Resources on 9 December due to a haphazard system of mail delivery from reception to the Human Resources Department. I consider that the system of internal delivery can result in unfairness to persons who attend at the hospital to personally deliver mail which must be received within a stated timeframe and I find that the internal postal system resulted in unfairness to the complainant in the present case.
The selection process
5.9 I will now consider the selection process itself as the complainant submits that as an older candidate, she was weeded out of the process thereby allowing only the younger candidates to be considered. The respondent submitted that the advertisement was essentially the job specification. In correspondence dated 29 June 2004, the respondent made available a copy of the shortlisting criteria which it submitted were used as a reference tool. At the hearing, it submitted that selection criteria were drawn up prior to the interviews sometime between the closing date for applications and the interviews but it was not more specific. The respondent did not apply a marking system and it failed to make notes. A failure to apply a marking system which takes into account the assessment criteria can allow for the operation of subjective assessments which prejudice the selection process and may also be discriminatory. The Labour Court has stated in relation to the failure by a selection panel to make any record of the basis of their decisions:
"...., the failure of the panel members to make any record of the basis of their decisions for each applicant for this very senior post is regrettable. The defendants in this case have stated to the Court that the criteria for selection were 'borne in mind' in discussion of the candidates. Such total lack of transparency has left the panel open to the criticism of personal bias in selection of interviewees." 3
5.10 The shortlisting process was carried out by one person only. Whilst it may have been more prudent to have at least one other person involved, an inappropriately balanced selection board is not sufficient in itself to raise a presumption of unlawful discrimination but it can form part of the evidential chain on which a claim of discrimination is made out.4 The qualifications of the candidates shortlisted included a Secretarial and Business Studies course, a Diploma in Applied Bioscience, a Diploma in Electronic Engineering, a BSc, a Diploma in Food Analysis with Quality Assurance and a Secretarial and Business Studies Course. The work experience of the candidates shortlisted also varied. I note that the complainant was 48 years old at the time of the competition and that a person who was two years younger than the complainant was shortlisted. The ages of the candidates shortlisted were 22, 23,23, 35, 40 and 46. The age of the candidate who was ultimately successful was 35. The Labour Court has stated:
"The existence of a difference on the grounds of age, marital status or family status
between the two candidates does not of itself establish a prima facie case of
discrimination."5
In that case, it proceeded to hold that a difference in age of three years was not significant enough to establish a presumption of discrimination in the absence of any other facts.
5.11 The selection process in this case lacked transparency due to the failure of the respondent to mark according to the criteria chosen and no notes were made. Additionally, only one person conducted the shortlisting process. I consider that in the absence of any other facts, these factors in themselves are not sufficient to establish a presumption of discrimination on the age ground. I note that the Labour Court has stated:
"A failure to keep records of interview processes, which of itself may not be discriminatory, when coupled with other factors, may lead a Court to infer that there has been discrimination. ...... this Court has consistently stressed that interview boards, both internal and external, should be trained, and apply strict promotion criteria agreed in advance with adequate markings and should keep comprehensive notes."6
I consider that it would be prudent of the respondent to take into account the Labour Court statement in relation to selection processes in all future competitions.
5.12 In this case, evidence has not been presented which indicates that the respondent sought or considered the age of the complainant in her elimination from the shortlisting process. Whilst the manner in which the complainant's application was handled following its delivery to reception resulted in huge unfairness to the complainant, there is no evidence that the treatment in itself was related to the complainant's age. In this case, the complainant has not provided any evidence to indicate that she was treated less favourably in relation to her age. I have considered the totality of the evidence presented and I find that the complainant has failed to discharge the evidential burden placed on her. The complainant has failed to establish any facts which give rise to a presumption of discrimination and I therefore find that she has failed to establish a prima facie case of discrimination on the age ground. Accordingly, her claim cannot succeed.
6. DECISION
6.1 On the basis of the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 contrary to section 8 of the Act in relation to access to employment.
__________________
Mary Rogerson
Equality Officer
20 August 2004
1 DEE011 15 February 2001
2 Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003
3 University College Dublin v. Professor James Mc Kernan AEE/01/19 Determination No: 028 19 August 2002
4 Southern Health Board (Cork University Hospital) v. Dr. Teresa Mitchell DEE011
5 Superquinn v. Barbara Freeman AEE/02/8 No. 0211 14 November 2002
6 Department of Health & Children v. John Gillen EDA0412 27 July 2004