O' Sullivan -v- The Galway - Mayo Institute of Technology(Represented by Tom Mallon B.L. instructed by Arthur Cox, Solicitors)
1. CLAIM
1.1 The case concerns a claim by Mr. James O' Sullivan that the Galway-Mayo Institute of Technology directly 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 of the Act in relation to a competition for the posts of Library Assistant (Grade III and IV) at the campuses in Galway and Castlebar.
2. BACKGROUND
2.1 The complainant applied for the posts of Library Assistant (Grade III and IV) in the Galway and Castlebar campuses respectively. He was subsequently informed that his application had not been successful and he was not called for interview. The complainant submits that his qualifications and experience were more than adequate for the positions and that he was discriminated against on the age ground in the shortlisting process. The respondent rejects the complainant's claim of discrimination and submits that the complainant was not called to interview as he did not achieve sufficient marks in the shortlisting process. It submits that the ages of the candidates had no bearing whatever on the outcome of the shortlisting or interview process.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 10 June 2003. On 26 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 2 March 2004 and from the respondent on 8 April 2004. A joint hearing of the claim was held on 23 June 2004.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant submits that he received a rejection letter from the GMIT concerning the positions he applied for in the library expressing the view that there were candidates with more experience than him. He was surprised based on his own background and qualifications. His qualifications included an MSc from the University of Surrey in Training Systems Analysis gained as a mature student, a Certificate in Production and Inventory Management from the American Production and Inventory Control Society, experience in managing a Library in an industrial company with "state of the art" multimedia, experience in computerised stock control systems and a good knowledge of Library Classification Systems including the Dewey system of classification.
3.2 The complainant submits that a senior member of staff in the college endorsed his ability and proven success in the area and in other areas of the same field. The person was named as one of his referees and would have been available to discuss his application. The complainant submits that his qualifications and experience were more than adequate for the positions applied for. His CV also stated his intent to pursue a degree in Library Science which would add a valuable resource to the positions.
3.3 The complainant overheard a conversation in a social context which suggested that the respondent was predisposed to younger people that they could mould into the needs of the job as they saw it. As a result of the conversation that he overheard, he rang the respondent to query his non inclusion in the interview process. He submits that when he explained his qualifications and experience to the person contacted, they became flustered and then came back to inform him that he did not meet the selection criteria.
3.4 The complainant submits that the Personnel Manager rang him 5 days later with an obvious lack of knowledge of the content of his application form. When he suggested to the Personnel Manager that age was the barrier, he rejected the statement as out of hand and said that there were other more suitably qualified candidates for the job and that he had not met the selection criteria.
3.5 The complainant submits that as a mature candidate, the application should have at least been accepted for interview. He submits that the process of selection of the college should be tailored to their own admissions process for courses and reflect the diversity that now exists in the workforce. The complainant submits that he does not understand the failure to at least secure an interview for the positions, based on experiences and qualifications outlined and he believes the reason is that he was considered too old for the positions.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The case concerns an allegation that the complainant was discriminated against by the respondent on the grounds of age in relation to public competitions for appointment to the respondent's library service. The respondent denies that it discriminated against the complainant.
4.2 The respondent is an Institute of Technology which provides third level education and related services at its campuses in Galway and Castlebar. In that context, it provides library services for its students at those locations.
4.3 In January 2003, the respondent advertised in the national newspapers seeking applications for vacancies in its library services namely two Grade III posts in Galway and one Grade III Library Assistant post and one Grade IV Library Assistant 2 post in Castlebar. The complainant applied for the two Galway posts and the Castlebar Grade IV Library Assistant 2 post. The respondent received 221 applications for the Galway posts and 130 applications for the Grade IV Library Assistant 1 post.
4.4 In view of the very large number of applications for the positions and acting in accordance with the Ministerial selection procedures to which the respondent is subject by statute, the respondent carried out an exercise in short listing certain candidates for interview. Shortlisting was carried out in accordance with the common shortlisting marking scheme. Candidates with marks greater than 50 were called to interview. The complainant was given a mark of 39 in the shortlisting process for the posts. He was advised of the outcome of the competition by letters dated 1 April 2004.
4.5 The successful appointees have dates of birth of January 1950 and April 1975 (Galway posts) and January 1976 (Castlebar Grade IV post). The respondent is not aware of the complainant's age. The respective ages of the candidates had no bearing whatever on the outcome of the shortlisting or interview process. The complainant was excluded in the circumstances described above and not by reason of his age.
4.6 The complainant's submission offers no evidence whatever with regard to the suitability of the successful appointees or the persons called for interview. Neither does it offer any evidence whatever of any discrimination on age grounds or that the complainant's age influenced the decision not to call him for interview. The onus of proof is on the complainant and it has not been discharged.
4.7 The respondent refers to the burden of proof in discrimination cases and cites Dublin Institute of Technology v A Worker (DEE994), Davis v The Dublin Institute of Technology and the Minister for Justice, Equality and Law Reform (Mr. Justice Quirke, unreported), Mc Cormack v Dublin Port Company (DEC-E2002-046), Reynolds v Limerick City Council (DEC-E2003-032) and Revenue Commissioners v Liam O' Mahony & others.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him 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 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
Issue whether the burden of proof is satisfied in this case
5.5 I will now consider the issue of whether the complainant has established a prima facie case of direct discrimination on the age ground. In January 2003, the respondent advertised four posts in the national newspapers seeking applications for vacancies in its library services. The posts advertised were two Grade III posts in Galway, one Grade III post in the Castlebar campus and one Grade IV post in Castlebar. The complainant applied for the two Galway posts and the Castlebar Grade IV post. In respect of the Grade III post, the advertisement specified that applicants must have "obtained at least Grade D in five subjects in the Leaving Certificate examination .....or NCVA Level 2 or 3 equivalent." In respect of the Grade IV post, the advertisement specified that applicants must have "obtained at least Grade C in Higher Level papers in three subjects .... (or two subjects if Irish or Mathematics or both Irish and Mathematics are included) or have "a minimum of two years experience as a Library Assistant."
5.6 The respondent submits that 221 applications were received for the Galway posts and 130 applications for the Castlebar Grade IV post. It submits that a scoring scheme for shortlisting applications was devised by the Librarian in the Galway campus and the Assistant Librarian in the Castlebar campus in view of the large number of applications for the positions. It submits that it was done after the receipt of the applications but before the applications were examined. The scoring system provided that applicants would be scored on the basis of their qualifications (30 marks), experience (50 marks) and other information (20 marks). Within each category of marking, the marks to be given were further specified. For example, under the heading of qualifications, the precise marks to be given for a Relevant Miscellaneous Cert, a National Certificate, a National Diploma, Degree, H. Dip/Post Grad Dip, Masters/Ph.D and Library Qualification were specified. Similarly, marks for experience were to be awarded on the basis of whether the applicant had experience in (i) a Third level library with high IT content, (ii) other libraries with high IT content, (iii) Related experience- Museum, Fas Library trainee and (iv) Clerical/Admin/Tourism/Bookshop/Reception. Marks under the experience category could be awarded per year of service up to a maximum of 5 years. Similarly, under the heading of other information, marks could be awarded under (i) Application form presentation, (ii) Grammar/Spelling/Command of English and (iii) Added information. The respondent therefore had clearly defined criteria for marking candidates which were drawn up in advance of the shortlisting process.
5.7 In both competitions, the complainant received 5 marks for qualifications, 15 for experience, and 19 for other information. The complainant received the correct mark of 5 for his Masters in Learning Systems Analysis. He received 15 marks for experience based on 5 years with 3 marks for each year of service in the category 'Clerical/Admin/Tourism/Bookshop/Reception'. He received 19 out of a possible maximum of 20 marks for Other Information. An examination of the complainant's CV for the Castlebar campus which was provided (and was the same for both applications) indicated that he was self employed in the business of Project Development from 1993 to the date of the application for the positions. He submitted that in general, the projects were in the Telematics Education and Training Sector and that the general objectives were to allow those living and working in remote areas the opportunity to avail of Technology supported learning and information systems. He also submitted that he was employed from 1973 to 1993 in a Software Manufacturing Business and that his career spanned a number of areas within the company starting as a computer technician, then moving to Manufacturing and Production Control Supervision and finally to the Human Resources Department of Software Manufacturing as a Senior Training and Development Specialist.
5.8 I have considered the applications of the shortlisted candidates for both posts. I note that the person who was appointed to the Grade IV position in the Castlebar campus held a library assistant position at the time of application for the post (as did another person who was offered the position but declined). I note also that one of the people who was appointed to the Grade III position in the Galway campus was working as a Temporary Library Assistant on a work sharing basis at the time of application whilst the other person appointed held a Graduate Librarian post for five months, the post of Library Clerical Assistant for three years and held a H.Dip in Information & Library Studies and a MScEcon (Information & Library Studies). The qualifications and experience of the successful candidates may be contrasted with the complainant's which does not show any direct library experience or library qualification. I also note that one of the candidates appointed to a position in the Galway campus indicated on their application that s/he did his/her Leaving Certificate in 1968 and commenced his/her first job in 1968. The respondent subsequently indicated that the date of birth of that candidate was January 1950. That person was therefore aged 53 at the time of the competition. The complainant indicated on his application that he did his Leaving Certificate in 1970 and stated at the hearing that he was aged 49 at the time of the selection process. It is the case, therefore, that one of the persons appointed to one of the Grade III positions in Galway was in fact older than the complainant in this case.
5.9 The notes made by the assessors of all the candidates shortlisted gives a summary of each candidate's qualifications and experience. The notes in respect of the complainant's application for the Galway post refer to the complainant's Masters Degree in Learning Systems Analysis, 20 years as a Senior Training and Development Specialist and 10 years in Project Development. The note is similar for the Castlebar post. I note that in respect of the sixteen candidates who were shortlisted for the Castlebar campus, all are recorded as having previous library experience for example as Library Assistant, Archivist in Library, Librarian, Assistant Librarian, Library Manager and Graduate Librarian. Similarly, nineteen out of twenty one candidates shortlisted for the Galway campus are recorded as having previous library experience in the form of Library Assistant, Library Shelver, Librarian, Library Steward, Assistant Librarian, Library Summer Job Scheme, Library Manager and Graduate Librarian. One of the persons who did not have library experience is recorded in the shortlisting notes as having experience cataloguing books in a bookshop and the other person is recorded as having experience as a Senior Technical Writer and as a Teacher. I note that the two persons who did not have library experience in the competition for the posts in Galway achieved total marks of 50 and 51 respectively in the shortlisting process, thereby just achieving the 50 mark required to be shortlisted for interview.
5.10 The complainant in his submission refers to his experience in "managing a library in an industrial company with "state of the art" multimedia, experienced in computerised stock control systems and a good knowledge of Library Classification systems including the Dewey system of classification." I have been unable to find direct references to these experiences in the complainant's CV and I could find no reference to the Dewey system. In his CV, the complainant refers to one of his functions being to "maintain a library of information resources" during his term of employment with a Software Manufacturing business. There is also a reference to his "brief to secure funding and set up a multimedia laboratory to provide internal and external services for clients. The work of this laboratory included the development of multimedia instructional material for software product, sales presentations and courseware." This forum does not allow the complainant a second opportunity to present additional information not presented at the time of his application for the posts and in any case, it is not my function to supersede the choice of candidates made by the respondent. The Labour Court has stated:
"It is not for this Court to substitute its own views as to whether the appellant was a suitable candidate for the position. It is for the appellant to establish facts from which it may be presumed that the decision was reached on the basis of discrimination......"3
5.11 More recently again, the Court stated:
"The Court accepts that it is not the responsibility of the Equality Officer or the Court to decide who is the most meritorious candidate for a position."4
It went on to hold that the function of the Court is to determine whether discriminatory grounds influenced the decision of the selection board. It is the case, therefore, that my jurisdiction is confined solely to determining whether the selection process was conducted in a discriminatory manner. The complainant also submitted that his own evaluation was that the qualifications and experience stated were more than adequate for the positions applied for. I accept that it may have been reasonable for the complainant to believe that he more than satisfied the criteria listed in the advertisement for the posts; however, it appears that there were more suitable applicants in terms of qualifications and experience. Additionally, the requirements for the Grade IV - Library Assistant 2 post in Castlebar were either Grade C in Higher Level Papers in three subjects in the Leaving Certificate or a minimum of two years experience as a Library Assistant. The complainant confirmed at the hearing that he did not satisfy the Leaving Cert requirement although he obtained the equivalent of a primary degree subsequently. It also appears that the complainant did not satisfy the alternative requirement of a minimum of two years experience as a Library Assistant. The complainant also submits that "As a mature candidate the application should have at least been accepted for interview." Whilst noting that the complainant was aged 49 at the relevant time, section 33 of the Employment Equality Act, 1998 permits positive action and the taking of such measures in order to facilitate the integration of persons who have attained the age of 50 years into employment, there is no obligation on an employer to take such measures.
5.12 The complainant submits that the "measurement instrument is flawed and does not facilitate the strengths of a mature candidate." and that the weighting does "not take into account the almost direct similarity between knowledge of Library Systems and knowledge of particular systems in Information Technology." Any prospective employer including the respondent may decide on the appropriate selection criteria and the marks to be awarded under each criterion provided that the criteria are relevant to the post being filled, that they can be applied in a non-discriminatory selection manner and as far as possible eliminate any potential for the subjective assessment of candidates. In the case of University College Dublin v. Professor James Mc Kernan5, the Labour Court stated:
"The University considered the criteria to be essential for the employment, and there is no evidence that it was unreasonable in taking this position."
A failure to have clearly defined assessment criteria and 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 be discriminatory. In this case, a job specification was drawn up prior to the shortlisting process and was included in the advertisement for the posts. A summary of each applicant's qualifications and work experience were made as part of the shortlisting process. Applicants were shortlisted according to a predetermined scoring system and their marks were recorded.
5.13 I note that 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."6
The Labour Court in that case went on to hold that a difference of three years was not significant enough to establish a presumption of discrimination in the absence of any other factors. Evidence has not been presented which indicates that the respondent sought or considered the age of the complainant in the shortlisting process. In this case, the complainant has not provided any evidence to indicate that he was treated less favourably in relation to his age. I have considered the totality of the evidence presented including, inter alia, that the complainant did not satisfy the minimum requirements for the Castlebar Grade IV post and that a person older than him was appointed to one of the Galway Grade III posts and I find that the complainant has failed to discharge the evidential burden placed on him. The complainant has failed to establish any facts which give rise to a presumption of discrimination and I therefore find that he has failed to establish a prima facie case of discrimination on the age ground. Accordingly, his claim cannot succeed.
Respondent's Equality Policy
5.14 The respondent has made available a copy of its Equality Policy and I must point out that I am not satisfied as to the adequacy of the document. In accordance with section 9(6) of the Act, I cannot make an order in relation to this matter as I have not found in favour of the complainant. However, I recommend that the respondent redraft the policy to clearly take account of the provisions of the Employment Equality Acts 1998 -2004.
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
23 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
4 South Eastern Health Board v. Brigid Burke Determination No: EDA041 12 January 2004
5 AEE/01/19 Determination No: 028 19 August 2002
6 Superquinn v. Barbara Freeman AEE/02/8 No. 0211 14 November 2002