EDA0412

FULL RECOMMENDATION

ADE/03/15

DETERMINATIONNO.EDA0412

SECTION 83, EMPLOYMENT EQUALITY ACT, 1998

PARTIES :

DEPARTMENT OF HEALTH & CHILDREN
(REPRESENTED BY CHIEF STATE SOLICITORS OFFICE)

- AND -

JOHN GILLEN

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appeal under Section 83 of the Employment Equality Act, 1998

BACKGROUND:

2. The worker referred his case to the Labour Court on the 7th of October, 2003. The following is the Court's determination:

DETERMINATION:

This is an appeal by the Department of Health and Children (the respondent) against the decision of an Equality Officer in a claim alleging discrimination on the age ground brought by Mr. John Gillen (the complainant). He claimed that his non selection in competitions in November, 1999, amounted 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.
The complaint relates to the following: -

(i) An interdepartmental competition, in which the complainant participated, to create a panel of Department nominees of persons suitable for promotion to Principal Officer throughout the Civil Service. The complainant was not nominated to the panel sent forward to the Civil Service Commission appointed interview board for the next stage of the selection procedure.(ii) An internal competition within the Department of Health and Children for the appointment to Assistant Principal (Higher Duty Allowance).(iii) The claimant believes that as a result of the outcome of these competitions, together with earlier competitions in which he participated, there is a policy or practice within the Department of Health and Children which discriminates against older candidates, i.e. over 50 years of age.The complainant was, at the material time, serving as Assistant Principal Officer, and was fifty-four years of age.

Having investigated the complaint, the Equality Officer found that the respondent did discriminate against the claimant on grounds of his age and in contravention of the provisions of Section 8 of the Employment Equality Act 1998, by virtue of an apparent policy of non-promotion of persons aged over 50 years of age.

Having so found, the Equality Officer went on to make orders directing the respondent to pay the complainant €40,000 in compensation for the consequences of the discrimination, and to take such measures as were necessary to ensure that internal interview boards have formal interview training, apply strict promotion criteria with adequate marking schemes, and that the Department should cease its policy of promotion by consistory.

The respondent appealed to the Court against that decision.

Background:

In summary, the background to the dispute is that in November, 1999, two competitions were held for which the complainant applied. The first was an interdepartmental competition to appoint a panel of persons for promotion to Principal Officer throughout the civil service.

To progress to Principal Officer (PO) level, which is the next promotional level above Assistant Principal Officer (APO) level, a candidate must have a minimum of three years' service at APO level. The two main avenues to promotion into PO grade are by an internal competition (‘consistory’) or through an external competition (interdepartmental, confined and decentralised competitions). All these competitions are governed by agreed procedures with the Civil Service Trade Unions.

Interdepartmental Competition

On 22nd November, 1999, the complainant was interviewed by an interview board, nominated by the Civil Service Commission, comprising of the Assistant Secretary of the Department of Enterprise, Trade and Employment who acted as chair of the board; together with two senior officers employed by the respondent. Six persons out of a total of 23 candidates were nominated to go forward to the next stage of the competition. Mr. Gillen was not among the six selected.

Internal Competition

On 26th November, 1999, a competition for one vacancy at APO Higher Duties level was held by means of a ‘consistory’. Those interested in the competition put their names forward. Assessment forms completed by principal officers together with curriculum vitae were forwarded to the Management Advisory Committee (MAC) for deliberation on the most suitable candidate based on this information and on the verbal submissions made by PO’s in respect of three applicants. Mr. Gillen was not successful in this competition.

The Complainant's Case

For the following reasons, the complainant believes that his age had become the principal factor contributing to his failure to be promoted, and in support of this contention he advances the following: -

•From 1990 to 1991, when he was in his mid forties, he participated in competitions involving three different departments, for promotion to PO and was successful in being appointed to a panel for promotion on two occasions. However, as the number of vacancies which arose from these panels was less than the number of persons on the panels he was not appointed to a PO position.

•Over the following years, in numerous assessments, his superior officers found his performance as Assistant Principal Officer to be ‘above average’ and found him to be highly suitable for promotion to Principal Officer.

•In the first of the two competitions held in November, 1999, the average age of the six candidates selected to go forward to the Civil Service Commission was age 40, with their ages ranging from 35 to 49. In addition to Mr. Gillen, there were four candidates over age 50, none of whom were successful. Mr. Gillen had significantly more experience in the grade as Assistant Principal Officer. The success rates for candidates under age 50 was 35.2%, whereas the success rates for those over age 50 was 0%, although approximately 25% of candidates were aged over 50.

•In the second of the two competitions held in November 1999, the successful applicant was 35 years of age but had only approximately half the length of service of Mr. Gillen. In addition, Mr. Gillen had significant experience in the area for which the job was being advertised (Personnel Management and Development Unit). There were seven candidates aged 50 and over. Mr. Gillen claims that this ‘consistory’ method of selection lacked openness and transparency.

•The success rates for those over 50 in a series of competitions between 1999 and 2003 showed that in none of these competitions were any candidates over 50 successful, although in each of the competitions there were a significant number of candidates over 50 years of age.

•The shredding of all notes and records, including the scoring system, suggests that there was no objective evidence to justify the scoring of candidates under the various competencies prescribed.

•The complainant rejected the respondent's appeal that the sum of €40,000 as awarded by the Equality Officer was disproportionate or excessive. He submited that the respondent is incorrect in its assertion that the financial loss suffered as a result of not being promoted to Principal Officer up to his retirement date at age 65 is approximately €5,000 net per annum; he quantifies it at approximately €9,000 gross per annum.

The respondent’s case

The respondent rebutted the allegations made on the following basis: -

•In the two competitions in question, the complainant’s ability and suitability for promotion were found not to be suitable compared to the successful candidates, and this was the major contributing factor in his failure to be selected, not his age.

•The Department refute the allegation that it operated a policy of non-promotion of staff aged over 50. Promotions are determined by the standard set by the competing field, and whether it was by interview or by consistory, the complainant was found to be below the standard set by the field of competing candidates.

•The grade of APO is the first rung of senior management within the Civil Service and is not an entry grade but a grade which is competed for by way of experience and various competitions. In practice, successful candidates at APO level and at PO level would have considerably more service than the minimum requirement. At the material time there were 87 APO’s and 22 PO’s. The Department’s experience is that the best candidates would be promoted shortly after receiving the minimum experience subject to available positions and, therefore, at a relatively younger age. This is borne out by the fact that the figures on the average age of successful candidates for promotion indicate that up to APO level, the average age is always less than 41 years and up to PO level (where the number are much smaller), the average age is in the mid 40’s with the occasional 50 or 51. Mr. Gillen was not in a position to compete for a PO post until the age of 46, whereas most candidates commence competing for PO level in their mid to late thirties.

•Between the years 1999 to 2002 (the time period opted for in the Equality Officer's decision for comparison purposes), seven people over the age of 50 were appointed to promotion positions by the Department - four to APO Higher Duties level, three of which came through the internal competition method, and one through an interdepartmental competition. Three of the other promotions were at a more senior level – at Director, Assistant Secretary level.

•A proper analysis of the statistics of the interdepartmental competition held on 22nd November, 1999, must test the hypothesis that success in the ‘under 50’and50 and over’groups are more or less the same against the hypothesis that the ‘50 and over’group is less successful. The success rates in the two groups are 35.2% and 0% respectively. Statisticians would not regard them as being “significantly” different. Testing what is known as the “null hypothesis” supports this.

•The Department denies that the absence of a formal marking system at the interdepartmental competition supports an allegation of discriminatory practice on the ground of age. There was no deliberate policy of destroying interview notes and records; they were shredded once the competition was over, in line with custom and practice. The Interview Board followed guidelines as set out by the Department of Finance on testing competencies and reached a decision based on a marking system devised by the Board when the criteria for the positions were taken into account.

•The Equality Officer's criticism of the ‘Consistory’ process disregards the considerable experience, integrity and objectivity of the MAC. MAC has the knowledge and ability to make a decision on an APO even though the APO may not have the support of the PO. The Union continues to argue very strongly for its retention.

•The complainant has not established aprima faciecase of discrimination on the age ground

There are two preliminary matters for this Court to decide.

Time Limits

The first of these relates to whether the complaint in relation to the interview held on the 22nd of November, 1999, was in time. Section 77(5) of the Employment Equality Act states that

“a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of the occurrence, or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".

The complainant’s complaint is that after he had reached the age of fifty he was no longer considered by the appellant as being suitable for promotion purely on age grounds. On each occasion he competed, he was rejected by the appellant on the grounds that he was over fifty years of age. The Department submits that if the complainant is correct (which it does not accept) then he was subjected to two separate and distinct acts of discrimination, in two separate and distinct competitions by two separate bodies.

In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground.

The Court, therefore, takes the view that both complaints are validly before the Court.

Burden Of Proof

Mr Kerr, on behalf of the appellant, submitted that in the circumstance of this case the onus is on the complainant to prove that on the balance of probabilities there is a link or connection between his non-selection for promotion and his age. He submits that in age discrimination cases it is not appropriate to apply the test laid down in S.I. No: 337 of 2001, which is expressly confined to gender discrimination cases.

It has been the established practice of this Court in relation to the burden of proof in non gender discrimination complaints under the 1998 Act to shift the burden of proof where the complainant has established facts from which discrimination may be inferred, viz.O'Mahony -v- Revenue Commissioners Determination No:EDA033– it takes the view that in cases of alleged unlawful discrimination, a procedural rule similar to that prescribed by Directive 97/80/EC (The Burden of Proof Directive) should be applied.

Under this procedure, it is for the complainant in the first instance to establish as facts the assertions on which the complaint is based, and having thus established aprima faciecase of discrimination, the burden of proof rests with the respondent to demonstrate that discrimination did not take place. It is well established that in cases such as this, direct evidence of discrimination is unlikely to be available and, therefore, the law of evidence must be adopted to place the probative burden on the respondent in appropriate circumstances. The position in this regard as set down by this Court inSouthern Health Board v Mitchell [2001] ELR 201: -

"The complainant 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 regarded by the Court is 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 applicability of this principle in non-gender cases was considered by this Court inCitibank v Massinde Ntoko Determination No. EED045: Here the Court stated as follows:-

“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof”.

Indeed the concept of a shifting burden of proof is not unknown at common law, particularly where the matter relied upon is peculiarly within the knowledge of the defendant.

In relation to the burden of proof in discrimination cases, this Court again refers toCitibank: -

“Support for this approach can be found in the speech of Lord Browne -Wilkinson in Glasgow City Council v Zafar1998 2 All ER 953 andat page 958 in which he quoted with approval the guidance given to Employment Tribunals by Neill LJ inKing -v- Great Britain China Centre [1992] ICR 516as follows:
- “ From the several authorities it is possible I think to extract the following principles in guidance.
- - 1. It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the Applicant does not prove the case in the balance of probabilities he or she will fail.
    
    2. It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill intentioned but merely based on an assumption that "he or she would not have fitted in."
    
    3. The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.
    - 4. Though there will be some cases where, for example, the non-selection of the applicant for a post or her promotion is clearly not on racial grounds, a finding of discrimination and finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law, but, as May L. J Put it in North West Thames Regional Health Authority v Noone [1988] ICR 813 at 822), " almost common sense."
      
      5. It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences, as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."
  “This passage was adopted in this jurisdiction inDavies v Dublin Institute of Technology High Court unreported Quirke J 23rd June 2002. It should however be noted thatKing(which was a race case) was decided before the Burden of Proof directive was adopted and that this Directive and the transposing domestic legislation were not open to the Court inDavis”.

The Court is of the view that if, as inKing, certain facts are found by this Court and where those facts point to the possibility of discrimination on age grounds, the Court will look to the employer for an explanation. If no explanation is then put forward or if the Court considers the explanation to be inadequate, it will be legitimate for the Court to infer that the discrimination took place.

This test is congruent with the principles laid down in theMitchellcase, and the Court will proceed to use those principles when assessing whether not the complainant has proved his case.

A complainant must show the following before a Court can draw any inferences from the facts:

- that she/he is covered by the relevant discriminatory grounds

- that she/he has been subject to specific treatment,

- - - and

- that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been, or would be treated.

Based on the evidence heard and the submissions made, the Court is satisfied that the complainant has established certain facts. These are as follows: -

- the complainant is over fifty years of age and the successful candidates in both competitions complained of were under 50 years of age,

- no candidate over the age of fifty years of age has been appointed to an equivalent postin open competitionwithin the Department of Health and Children in the three years prior to the acts complained of, and there were a number of candidates over the age of fifty applying for these posts.

- in the first of the competitions, the written records and marking system were destroyed immediately after the competition.

- in the second competition, undertaken by the Management Advisory Committee, no records whatsoever were kept,

- the complainant had, in the early 1990s, when he was under the age 50, been successful in being nominated for promotion although, at the time, the life of the panels to which he was appointed expired before any relevant post became available,

- the complainant had more service and experience in the Assistant Principal post than the successful candidate in the internal competition,

- the Department in its submission states that in its experience the best candidates will be promoted shortly after receiving the minimum experience subject to available positions and, therefore, at a younger age.

In the view of the Court, these seven facts, taken together, lead the Court to infer that there may have been discrimination, whether intentional or unintentional, against the complainant on the grounds of age.

The onus, therefore, must be on the appellant to rebut this inference.

In response, the appellant stated that the fact that the candidate was over 50 years of age was irrelevant. The only matters of consideration were his ability and suitability for promotion. Promotions are determined by the competing field. The respondent submits that whether it was by interview or by consistory, the complainant was found to be below the standard set by the competing candidates.

The respondent contends that the Equality Officer did not pay any attention to the fact the complainant was not in position to compete for Principal Officer posts until the age of forty-six whereas most of the other candidates would have competed for Principal Officer posts in their mid to late thirties. However, the Department states that the average age for appointment to Principal Officer level is mid 40’s with the occasional 50 or 51.

Statistical Evidence

The Department furnished statistics, which purported to show that in the 22nd November, 1999, competition, the fact that nobody over fifty was successful was not statistically significant. These statistics have been the subject matter of considerable dispute between the parties.

There were 23 candidates for this competition, 17 of which were under 50 years of age, and 6 over 50 years. Six of the under 50 year old candidates were successful while none of the over 50’s were.

In support of its contention that there is no statistical significance in the success and failure rates of candidates under 50 years of age and those over 50 years of age, the Department 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.

The success rates in the two groups are 35.2% and 0% respectively and, although these numbers are different, statisticians would not regard them as being “significantly different” in a statistical sense. Testing what is known to statisticians as the “null hypothesis” supports this.

HO: Success rates in the two groups are the same
versus
HA: There is a lower success rate for the 50 and over group

Using Fisher’s “Exact Test” the so-called “p-value” is 0.1226, which does not lead one to reject the “null hypothesis”. The results are not so unusual that it would lead a statistician to reject HO and HA.

Taking the success and failure rates for candidates under 50 years of age and those over 50 years of age, the witness concluded that the results are not statistically sufficient to reject the hypothesis of no association between age and success in the competition.

In response to the Court’s questioning of the test, taking the second competition into account, Professor Boland stated that it was not possible to test the 26th November, 1999, competition as both competitions could have had the same candidates. It was confirmed for the Court that eighteen of the candidates who took part in the interdepartmental competition on 22nd November, 1999, also took part in the internal competition on 26th November, 1999.

The complainant in response quoted Berenson and Levine “Basis Business Statistics” which held that“failure to reject the null hypothesis is not proof that it is true. We can never prove the null hypothesis is correct because we are basing our decisions only on the sample information not the entire population”.

The complainant held the view that the application of the “null hypothesis” theory in the analysis of the statistics in the present instance is not an appropriate use of such a hypothesis. He held the view that it would be more appropriate if it were analysing a sample group of a larger cohort or population. The age profile is not a matter of hypothesis, but an examination of cold statistical data.

Having carefully examined the relevant evidence of the respondent and its rebuttal by the complainant, the Court is of the view that the statistical evidence is not conclusive for one party or the other.

Notes, Records and Marking Systems

The Department states that in line with custom and practice, all notes and records of the competition of the 22nd November, 1999, were destroyed as soon as the results had been released. Statements from the Interview Board were attached to their submission confirming that the age of the candidates did not figure in their decision-making process.

The Department submitted that the Equality Officer totally disregarded the considerable experience, integrity and objectivity of the Management Assessment Committee in the consistory process. It also stated that this procedure had been agreed between the unions representing higher civil servants and management.

The Department did confirm that, in its experience, the best candidates with the minimum experience would be appointed and, therefore, most of the appointments were at a relatively younger age. It stated, however, that this did not reflect any age bias on the part of the Department.

Finally, the Department submitted that the successful candidate in the competition held on 26th of November, 1999, was manifestly the most capable candidate. He had seventeen years' experience in the Civil Service, holds a B.A in Public Administration and an M.Sc. His assessment was marked considerably in excess of that of the complainant’s. It states that the successful candidate’s appointment was not affected by any age considerations.

Findings of the Court

The Framework Directive on Equal Treatment in respect of religion, disability, age or sexual orientation (2000/78/EC) provides at recital 15: -

- "the appreciation of facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law and practice. Such rules may provide, in particular, for indirect discrimination to be established by any means, including on the basis of statistical evidence."

In the cases involving both the Equality Tribunal and the Labour Court, a number of tests have been used in considering whether to draw an inference of age discrimination. Generally it is a combination of these factors which has convinced the Tribunal or the Court that an inference of discrimination is appropriate. The factors which figured most strongly to date are: -

(i) A marked statistical difference in success rates for different age groups in apparently similar circumstancesO'Mahony -v- Revenue Commissioners DEC E2002-018 and ADE/02/09

(ii) Evidence of a policy to prefer a particular age groupO'Byrne -v- Department of Public Enterprise DEC E2002-40.

(iii) Lack of transparency, or unexplained procedural unfairness, may create an inference of discriminationO'Byrne, An employee -v- A Government Department DEC-E2002-056, Madden v Aer Lingus DEC E2002-006.

(iv) A mismatch between formal selection criteria and those apparently applied in practice may also create an inference of discrimination (O'Mahony).

(v) A pattern of significant inconsistency with older candidates previous assessments.(O'Mahony)

Other factors, which can be persuasive, are: -

(a) Discriminatory questions asked at interview.

(b) The presence of a single successful appointee who was in the same age group as the complainants does not disprove age discrimination, notwithstanding that the appointee is of exceptional ability compared to other successful appointees.

Conversely, the following elements have weighed against an inference or a conclusion of age discrimination:

(i) The selection criteria appear objective and seem to have been honestly applied in practiceEmployee V Department of Foreign Affairs Dec-E2002-038.

(ii) Statistics suggested that success rates are broadly similar for different age groups, in apparently similar circumstancesByrne -v- FAS DEC - 2002-045.

(iii) The employer tried to ensure that the Interview Board included a mix of gender and ages(O’Mahony)

(iv) Finally, the fact that the respondent's overall policy is not discriminatory has been given limited weight in several decisions(Sheehan -v- D.P.P. - DEC - E2002-047)

A case of age discrimination presents particular difficulties. Where there is no direct evidence on age grounds for the alleged discriminatory actions and decisions, the complainant is often faced with a great difficulty in discharging the burden of proof placed upon him. The complainant faces special difficulties in a case of alleged institutional discrimination, which, if it exists, may be inadvertent and unintentional. This Court needs to address the primary facts (if any) from which it may be possible to draw inferences of discrimination and examine the totality of these facts in order to see whether it is legitimate to infer that the action complained of was committed on the discriminatory grounds. In conclusion, the Court must also carefully assess the evidence of the parties and their witnesses. It must take into account the explanations furnished by the appellant in respect of their decisions.

This Court has carefully examined the facts and the explanations offered by the Department. The Court finds that there was discrimination against the complainant for the following reasons:

1. Number of promotions of those 50 years and over. The Department furnished information to the Court on details of promotions of staff 50 years of age or over for a period commencing 19th February, 1997, up to 13th May, 2002. Having examined this information, the Court makes the following observations: -

- - - The Equality Officer examined details of promotions during the years 1999 to 2002; however, the Court is of the view that only the period up to the date of the alleged acts of discrimination should be considered. Therefore, the Court examined information on promotions of those 50 and over for the period up to and including November, 1999.

- - - Examinations of these figures indicates that within the entire Department during these three years, four persons age 50 or over were promoted.

- One promotion to Assistant Secretary position at age 50 was made by the Top Level Appointments Commission (TLAC)

- One promotion to a Director position was by internal competition on 19th February, 1997. He was age 52 years

- One person promoted to Principal Officer position had, a number of years previously, been promoted to Assistant Principal – Higher Duties and, consequently, in November 1999, he was being made substantive in the grade in accordance with the approval contained in the Department’s letter dated 3rd November, 1999, “to make four Assistant Principals currently acting as Principals substantive in the higher grade”,

- The fourth person was promoted to Services Officer grade, which is a more junior grade and therefore the Court does not consider it relevant.

While this information indicates that there have been promotions of those over 50 years of age in the Department, none were by open competition. The Court does not accept that one appointment by internal competition is sufficient to rebut the complainant’s case.

2. Weight of experience as a selection method. The internal position applied for on 26th November, 1999, was for the grade of Assistant Principal Officer (Higher Duties Allowance) which the respondent points out is “ the first rung of senior management within the Civil Service” and “is a grade which is competed for by way of experience and various competition avenues”. While the position requires a minimum of three years’ experience at HEO or AO level, in practice, “successful candidates who reach this grade would have considerably more service” that the minimum required. The successful candidate was aged 35 years, and had half the complainant’s service at APO level. He was the second youngest of all twenty candidates. The Court is of the view that since the criteria for this promotion was based on the experience attained by the candidate then, effectively, the process was one of selecting the “senior most suitable” candidate. However, the outcome of the competition suggests that in this instance one of the most junior and consequently younger candidates was successful.

Evidence was given to the Court on the internal competition by 'consistory' system – MAC. It was explained that there were ten people involved in the selection by MAC and that it was chaired by the Secretary General of the Department of Enterprise, Trade and Employment. The process involved Principal Officers reporting to MAC, one at a time, to speak about candidates in terms of (i) their experience and the value gained from their experience, (ii) the ability to delegate authority, (iii) their team working skills and (iv) their contribution to corporate thinking.Following this, MAC held discussions to validate the nominations and to select the chosen candidates for the position as Assistant Principal Officer - Higher Duty Allowance. The respondent stated that it is normally the most senior persons who are selected. The complainant stated that he was not nominated by a principal officer, as he did not have a principal officer at he time. This was disputed by the respondent.

3. Bias in favour of younger candidates. The Department stated that in its experience, the best candidate with the minimum experience is promoted. This inevitably leads to younger candidates being promoted. It must also lead this Court to infer that consciously or unconsciously a bias has been created in favour of younger candidates for promotional posts and that applicants such as the complainant are placed at a disadvantage because of their age.

Appendix 7 of the Department’s submission to the Court shows a table giving details of promotions by year, grade and average age, for the period 1998 to 2002. These promotions were selected by four different methods - internal, panel, confined and by open competition. The table shows that the average age for promotions to AP level was between 32 and 38 years in 1998 and between 36 and 37 years in 1999. In none of the competitions shown in the table, from SO level up to AP level, was the average age over 42 years.

In 1991, the complainant was placed on panels for promotions by the Department of Education and the Revenue Commissioners and by the Department of Health as a candidate suitable for promotion, this was at a time when he was in his mid 40’s. The evidence presented shows that his assessments since then, with one exception, indicated a high level of satisfaction with his performance and considered him suitable for promotion. He was assessed in November 1995 as “significantly above requirements”, his then Principal Officer at the time commented, “the candidate would make an excellent principal officer”. His most recent assessment was given in relation to an interdepartmental competition in 2000, when he was assessed as “significantly above requirements”.From 1995, he applied for a number of competitions and was not successful; the complainant believes that his age was a major contributing factor in his failure to be selected for promotion, as at the time of these competitions he was 50 years of age or older.4. Marking system. It is accepted that the six candidates selected in the interdepartmental competition all received the highest possible assessment marks (with one exception, one candidate aged 39 got six A’s and one B) and the complainant received 5 B’s and one A. However, this information gives no indication of the value given by the Interview Board in terms of the selection of the six successful candidates as others both under and over 50 years of age similarly received the highest possible marks (7 A's) and were not selected.

The Chairman of the Interview Board gave evidence to the Court that as the marking system of the Civil Service Commission was not consistent with Circular 23/99, the Board put together a marking system which took account of the job requirements as detailed in the circular, especially clause 15 (b): -

- - - - “that they have a proven record of:
        commitment and diligence,
        decisiveness,
        readiness to adopt a proactive approach,
        resilience under pressure,
        adaptability,
        personal effectiveness,
        delivering results”.

However, no details of the candidates’ individual marking are available.

5. Failure to keep records. The failure to keep records has been commented on by this Court many times. 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. The consistory process, however well intentioned and conducted, appears to be a subjective process, and, therefore, it is essential that records be kept of this decision-making process in order that it may be seen to be open and transparent.

Conclusions

Taking these facts into account, the fact that the complainant was over 50 years of age meant that there was an immediate, albeit inadvertent and non-malicious bias against him when he approached the Department for promotion.

The lack of any records both in relation to the interview and the consistory process are in the view of the Court an insuperable difficulty when attempting to prove the contrary. The Court fully accepts the Department’s contention that there was no ill will or any intention to discriminate by any of the parties involved in this process, but given the facts as found, and the attempted explanation proffered by the appellants, the Court has no hesitation in finding that the complainant was discriminated against on the grounds of age when applying for a position as a Principal Officer in the interview and in the consistory process.

The Court should point out that this finding does not mean that it considers that the applicant was the best person for the position at the time of the interview. That is not its function. Its sole function was to consider whether the applicant was discriminated against in the interview process on account of his age, and in this respect it has so found.

In relation to the procedural inadequacies found in the Equality Officer's decision, 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 interview notes. The Court upholds this aspect of the Equality Officer's decision

In relation to the policy of promotion by consistory, the Court accepts that this is an agreed system, which has the Unions’ sanction and under the terms of Sustaining Progress may not be revised without their agreement. The Court also notes that since the Equality Officer’s decision was issued, changes have been made to the consistory process in an effort to improve it. Therefore, to this extent, the Court varies the decision of the Equality Officer. The Court overturns the Equality Officer’s decision that the Department must cease its policy of promotion by consistory.

In relation to the award, the Court accepts that the discriminatory treatment given to the applicant was borne out of a policy which was not intended to be discriminatory and which, because of the fact that at the time of the discrimination the Act had only been in existence for twelve months, had not properly been thought through. However, the complainant has suffered as a result of this discrimination. In the circumstances, the Court upholds the award of the Equality Officer.

Determination

1. The appellant shall pay to the complainant the sum of €40,000 compensation for the distress caused by the discriminatory acts of the appellant.

2. The appellant shall ensure that internal interview boards have interview training, apply strict promotion criteria with adequate marking schemes and keep comprehensive interview notes.

3. The Court does not accept the Equality Officer’s decision that the appellant should cease its policy of promotion by consistory. The Court can see the merits in the consistory process. However, the members of the consistory should have an open and transparent procedure so that the reasons by which they arrive at their decision can be clearly identified. To that extent the decision of the Equality Officer is set aside. Adequate records must be retained in order to ensure that the process is objective and transparent.

The Court so determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
27th July, 2004______________________
CONDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.