Patrick Walsh -v- Institute of Technology, Sligo(represented by IBEC)
1. CLAIM
1.1 The case concerns a claim by Mr. Patrick Walsh that the Institute of Technology, Sligo 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 post of Building Services Supervisor.
2. BACKGROUND
2.1 The complainant applied for the post of Building Services Supervisor and was subsequently informed that his application had not been successful and he was not called for interview. The complainant submits that the respondent was able to estimate his age from his CV and that it interviewed applicants with less experience and qualifications than him. The respondent rejects the complainant's claim of discrimination and submits that the complainant was not called to interview as he did not hold a relevant qualification in Building Services which was a prerequisite for the post. It submits that age was not considered in the selection process.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 28 April 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 6 February 2004 and from the respondent on 22 March 2004. A joint hearing of the claim was held on 24 June 2004.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant submits that in November 2002, he was offered voluntary redundancy from the company he was then working with. Prior to his departure, he was contacted by a colleague who told him that Sligo Institute of Technology had a vacancy for a Building Services Supervisor and that an employment agency in Sligo was involved in the selection process. The complainant contacted the agency and he forwarded his CV. A few weeks later, he contacted the agency to check on progress and he was told that the Institute had laid down certain criteria for the post and that he did not meet their requirements. The agency was not specific in relation to how he fell short of the Institute's requirements.
3.2 In January 2003, the respondent advertised the post in the press and he completed the application form and forwarded a copy of his CV which contained a list of the jobs he had held and the number of years he worked at each thereby providing a profile of his age.
3.3 Some time later, he received a letter telling him that his application had been rejected. He was surprised that he had not been short listed for interview. He spoke to someone who had contacts in the Institute and learned that some of those interviewed were in their twenties with very limited experience and the successful candidate had a background of automation in the postal service rather than in building services.
3.4 The complainant obtained a copy of the criteria used by the respondent to shortlist candidates for interview and found that he scored approximately 85 and the cut off point for interview was 50. He then asked the respondent for an explanation but they declined to give one.
3.5 The complainant believes that he was discriminated against for the following reasons:
- The respondent was in a position to estimate his age from information in his CV;
- They did not apply their own selection criteria when rejecting him for interview;
- They interviewed applicants with less experience and qualifications than him;
- They declined to provide him with a profile of the experience of the candidates interviewed.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The case concerns an allegation that the complainant was discriminated against by the respondent when he was not shortlisted for interview for the position of Building Services Supervisor. The complainant is alleging discrimination on the age ground.
4.2 The respondent advertised the post of Building Services Supervisor in two national newspapers and one local newspaper. The closing date for receipt of applications was 18 February 2003. A job specification was issued detailing the requirements of the post to all applicants. Twenty eight applications were received.
4.3 The Estates Manager drew up shortlisting criteria based on the job specification. He reviewed each application and allocated a shortlisting score based on these criteria. Candidates with a score of 50 or above and who satisfied the minimum educational qualification requirements were shortlisted for interview. The complainant was allocated a score of 20 and the reason that he was not shortlisted was recorded by the Estates Manager as "No relevant qualifications and limited relevant experience". These comments are in the context of the specific job description and based on a review by the Estates Manager of the complainant's application form and curriculum vitae. The shortlisting exercise was also reviewed and approved by the respondent's Head of Development.
4.4 The shortlisting criteria were relevant qualifications, relevant work experience and other. The maximum marks under each criterion were 30, 60 and 10 respectively. Under the heading of relevant qualifications, the complainant scored 5 on the basis that his qualification (a National Certificate in Mechanical Engineering) lacks relevance to building services and was not regarded as a qualification which satisfied the minimum entry requirements. His qualification was not deemed to be equivalent to "a relevant professional qualification or relevant senior trades certificate" as specified under minimum qualifications on the job specification. This was a requirement for the post and a prerequisite to shortlisting applicants. The complainant's Diploma in Education was also deemed not relevant to building services.
4.5 The complainant scored 15 under relevant work experience on the basis that he was deemed to have more than 6 years experience in a general rather than a specialist role. While aspects of his experience with one employer had some relevance, the position was not deemed to be specialist facilities management experience on the basis of the information provided by the applicant. Under the heading "Other", candidates could have been awarded marks for Autocad and Health and Safety. The complainant scored zero as he did not have any qualifications under either category listed on his application form.
4.6 Ten candidates were shortlisted for interview. All candidates shortlisted met the minimum qualification requirement, i.e.
"An appropriate building services background with a relevant professional qualification or a relevant senior trades certificate to at least National Certificate Level or equivalent."
Of the ten candidates shortlisted, 5 had a qualification as Senior Trades Electrical, one had Senior Trades Plumbing/Fitting, one had Electrical Technician MBA, one had City & Guilds Part 2 Electrical (N.I. Equivalent to Senior Trades), one had a National Certificate in Electrical and one had a National Diploma in Building Services together with a Diploma in Project Management. Eleven candidates (out of a total of 18 candidates who were not shortlisted) were not shortlisted on the basis of a lack of relevant qualifications and their qualifications (exclusive of the complainant's) ranged from no qualification to BSc Building Surveying, BSc Environmental Science, BEng (Civil), a National Diploma in Automation, Senior Trades Cert - Wood Machining, MSc Operations Management and BSc I.T., Senior Trades Carpentry and Joinery and HNC Engineering.
4.7 Age is not a criterion that is considered by the respondent for any post. The selection criteria were applied fairly and equitably to all applicants and they do not discriminate directly or indirectly on age grounds. The criteria facilitated the short listing of the most suitable candidates in terms of relevant experience and qualifications. The respondent rejects the complainant's suggestion that he should have scored 85 in the shortlisting process. As the complainant did not hold a relevant qualification in Building Services, a prerequisite for a post at this grade, he was not shortlisted for interview. All candidates shortlisted had a relevant qualification and experience in Building Services.
4.8 In relation to the complainant's allegation that he heard that some of those interviewed were in their twenties, the Estates Manager can confirm that he did not discuss the short listing process with anyone. The Head of Development raised no queries in the process. The HR office staff did not discuss the filling of the post or any other post. It is the position of the respondent that the complainant has been misled on the matter.
4.9 In response to the complainant's allegations:
- The respondent did not estimate the complainant's age from his application as it was not relevant;
- The respondent applied its selection criteria in a comprehensive manner as supported by the shortlisted applications;
- Interviews were carried out with applicants who met the selection criteria and accumulated 50 points or more;
- There is no obligation to provide confidential information to applicants not shortlisted for interview.
4.10 The respondent does not accept that the complainant was discriminated against either directly or indirectly. There must be strong evidence of discrimination on one or more of the grounds to establish a prima facie case of discrimination. The facts in this case do not establish a presumption of discrimination on the age ground.
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 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
5.5 I will proceed to consider whether the respondent conducted the shortlisting process in a manner which was fair and objective and free from any form of bias on the age ground.
An advertisement for the post which was published in a daily newspaper, a Sunday newspaper and a local newspaper stated:
"We are seeking to recruit a Building Services Supervisor, who will be responsible for the maintenance and upkeep of the Institute's building services comprising electrical, plumbing, heating, ventilation and other specialist installations. The preferred candidate will have a professional or trade background in construction or facilities management with a sound technical knowledge of building services and supervisory experience."
The respondent drew up a job specification and issued it to all candidates with the application form. The title of the post was "Building Services Supervisor (Electrical & Mechanical)". The "minimum qualifications" were stated to be "An appropriate building services background with a relevant professional qualification or a relevant senior trades certificate to at least National Certificate level or equivalent. Relevant experience at a supervisory level. Good communication skills. Computer literacy and experience with autocad would be desirable."
5.6 One would therefore expect that the marking of the candidates in the shortlisting process would correspond with the requirements stated in the job specification. The short listing criteria used by the respondent were 1. Qualifications, 2. Work Experience and 3. Other (including Autocad and Health and Safety). The marks for qualifications were:
Relevant Trades Cert/Equiv. - 15,
Relevant Diploma - 20
Relevant Degree - 25
Relevant Others - 5
The maximum marks available under that heading were 30. The complainant's qualifications were a Certificate in Mechanical Engineering and a Diploma in Education. The respondent submits that the complainant's Certificate in Mechanical Engineering was not deemed to be equivalent to a "relevant professional qualification or relevant senior trades certificate". His Diploma in Education was also deemed not relevant to building services. The complainant achieved a score of five under the heading of qualifications. 5.7 Under the heading of 'work experience', candidates were marked under 'General Relevant' and 'Supervisory General' with additional marks available under each heading for 'Facilities Management Speciality'. The marks awarded under each heading depended on the candidate's length of service ,i.e. whether it was less than 3 years, 3-6 years or greater than 6 years. The maximum mark that could be achieved in that category was 60 (a candidate could be awarded 20 points if he had more than 6 years with general experience/facilities management and 40 points if he had more than 6 years supervisory experience/facilities management). The complainant achieved 15 marks under that heading and the comments on the scoring sheet for the complainant refer to the complainant's senior engineering projects, engineering automation and limited building services. The complainant did not receive any mark under the third heading. The reason given on the scoring sheet as to why the complainant was not short listed is "No relevant quals & limited relevant experience." An analysis of the qualifications of the candidate who was ultimately successful shows that he had an Electrical Technician qualification. The successful candidate achieved a score of 20 for his qualifications. He had experience as an Apprentice in building services, a Technical Officer, Engineering Manager, District Engineering Manager, Head of Technical Services, Divisional Engineering Manager and Training Planning Manager. He achieved a score of 60 for his work experience categorised as 20 for general/facilities management speciality and 40 for supervisory/facilities management speciality. The successful candidate achieved a mark of 5 for health and safety. The comment on the scoring sheet in relation to his Qualifications states "Electrical Tech, MBA" and under Work Experience states "Tech Services/FM Post Office. Gen/FM >6 Sup/FM >6"
5.8 An analysis of the qualifications of the other applicants shortlisted show that they had qualifications ranging from Senior & Junior Trade Certificates, City and Guilds Electronic Servicing Systems, Electrical Technician, City & Guilds, Electrical Installation and a Diploma in Building Services Engineering. I note that a person (aged 28) had a Technical Certificate in Mechanical Engineering and that the person in question was also not short listed. The complainant has submitted that to "reject Civil and Mechanical engineering as 'not relevant' seems to be an extremely narrow interpretation of those qualifications."
Prior to selecting candidates, any prospective employer including the respondent may decide on the appropriate selection criteria and the marks to be awarded under each criterion provided the criteria are relevant to the post, that they are applied in a nondiscriminatory selection manner and as far as possible do not allow for the subjective assessment of candidates. In the case of University College Dublin v. Professor James Mc Kernan3, 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." The Court in that case also 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......"
5.9 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. I must also point out that it is not my function to supersede the choice of candidates made by the respondent in the short listing process, my remit being to determine whether the selection process was conducted in a manner which was free from any form of unlawful discrimination. 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 a subjective assessment which prejudices the selection process and may be discriminatory. In this case, a job specification was drawn up prior to the shortlisting process and was forwarded to the applicants with their application forms. Assessment criteria were also drawn up and the candidates were short listed and marked according to predetermined assessment criteria. During the shortlisting process, the marks were recorded and notes were made in respect of each candidate and equally as important, the relevant documentation was retained by the respondent.
5.10 At the hearing, the complainant stated that he believes that his CV was given insufficient weight and his case was founded on being given insufficient marks for his (i) relevant work experience, (ii) supervisory experience and (iii) qualifications. He stated that he believed he should have got a score above 50 which was the cut off point for interview but a lower score than previously stated. In support of his claim, he wanted to demonstrate a trend in the marking of candidates over 55 years of age. He referred to two other candidates as well as himself who he maintained did not receive adequate marks. One of the candidates in question stated his date of birth on his CV whereas the other candidate including the complainant did not. He stated that one candidate (A22) had forty years service as a marine engineer and he was rated as having no relevant experience. He was also given no points for supervision even though he had worked as a Chief Engineer. He stated both another candidate (A4) and himself were given no marks for supervision. The Estates Manager who shortlisted candidates stated that candidates were marked under relevant experience and relevant supervisory experience. He did not deem the complainant's work experience or supervisory experience relevant and only reads the information provided on candidates' application forms. He submitted that the category 'supervisory experience' did not relate to people management. It had a technical aspect and involved managing procurement and on-site supervision of independent subcontractors. The Labour Court also stated in the Mc Kernan case which concerned an application for the post of Professor of Education that "The Court accepts that it is not in a position to judge the value of the extensive scholarship submitted by the candidate. Equally it cannot evaluate academically his varied experience over the previous 21 years in the field of education in four Irish Universities, ....." Similarly, whilst I accept that marking is a subjective process and it may be reasonable for the complainant to believe he should have received more marks, I am not in a position to judge the value of the complainant's qualifications, work experience and supervisory experience vis a vis the particular post in issue and indeed it is not my remit to do so. It is my function solely to determine whether the selection process was discriminatory on the age ground. The Labour Court has stated in relation to the marking of candidates:
"The Court having examined the written and oral information supplied by the parties, while taking different views on some of the markings is not satisfied that a case has been made to substantiate a claim that the panel discriminated against the claimant on age grounds as claimed."5
5.11 I note that there was only one person involved in the assessment process. Whilst it may have been more prudent to have at least one other person involved, an inappropriately balanced assessment 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 out6. The Labour Court has also 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."7
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 facts. I note that the successful candidate's age at the time of the selection process was 52 whereas the complainant's age was 57. The respondent submits that the successful candidate's age was not known at the time of the interview and the respondent only became aware of it on his appointment. The ages of the other candidates shortlisted were 28, 29, 32, 34, 34, 47, 51. and three unknown (including the candidate who was ultimately successful). 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 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.
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 July 2004
1 DEE011 15 February 2001
2 Flexo Computer Stationery v. Kevin Coulter EED0313 9 October 2003
3 AEE/01/19 Determination No: 028 19 August 2002
4 South Eastern Health Board v. Brigid Burke Determination No: EDA041 12 January
5 Limerick City Council v. Reynolds Determination No: EDA048 31 May 2004
6 Southern Health Board (Cork University Hospital) v. Dr. Teresa Mitchell DEE011
7 Superquinn v. Barbara Freeman AEE/02/8 NO. 0211 14 November 2002