FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : MONAGHAN VOCATIONAL EDUCATION COMMITTEE (REPRESENTED BY LENNON HEATHER & COMPANY SOLICITORS) - AND - CARROLL (REPRESENTED BY TUI) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr. Somers |
1. Appeal under Section 83 of The Employment Equality Act, 1998 - Dec-E2004-003
BACKGROUND:
2. The Labour Court investigated the above matter on the 3rd September, 2004. The Court's Determination is as follows:
DETERMINATION:
This is an appeal by Monaghan Vocational Education Committee (The Respondent) against the decision of an Equality Officer in a claim alleging discrimination on the age ground brought by Ms. Mary Carroll (the complainant). Ms. Carroll’s Union representative claimed that her non selection in a competition held on 11th January 2001 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: -
- The complainant was not selected in a competition, in which she participated, to appoint Special Duty Teacher Posts (SDT Posts, six day posts, 1 night post, 1 temporary day post) at Beech Hill College following interviews held on 11th January 2001.
The complainant contends that of all the applicants for the SDT Posts (except one who was also unsuccessful) she had the longest service and that of the six successful candidates, four were considerably younger. She claims that the posts were awarded to candidates who were all younger than her. She is also of the view that her service to the scheme and record of involvement in the school was superior to that of the successful candidates.
At the material time the complainant was 48 years of age and held a position as an acting Special Duties Teacher (Assistant Year Head).
Having investigated the complaint the Equality Officer found that the respondent did discriminate against the claimant on grounds of her age and in contravention of the provisions of Section 8 of the Employment Equality Act 1998, by virtue of her non appointment to one of the six SDT Posts in January 2001. He found that the marks awarded to her at interview did not reflect her experience, ability, involvement in education and her superior academic qualifications.
Other grounds of complaints were not upheld by the Equality Officer and the Union did not appeal the Equality Officers decision.
Having found that Monaghan VEC had discriminated against Ms. Carroll, the Equality Officer went on to make orders directing the respondent to backdate the complainant’s appointment to an SDT Post to the same date as those appointed following the interviews in January 2001 (Ms. Carroll secured an SDT Post subsequent to the January 2001 competition). He also ordered the respondent to pay the complainant €10,000 in compensation for the distress suffered as a result of the discrimination, and to take such measures as were necessary to ensure that notes are made in respect of all interviews in the future and are retained for a minimum of twelve months from the date of the competition.
The respondent appealed to the Court against that decision.
Background:
In summary, the background to the dispute is that in January 2001 a competition was held for which the complainant applied. This competition was held to fill six Special Duties Teacher Posts, plus a night duty post. Three candidates were unsuccessful on the day.
The competition was governed by Department of Education and Science Circular 43/00. This circular sets out the criteria across which candidates were assessed as follows:
1. Capacity of applicant to meet the needs of the school -50% of marks– scored at the discretion of the Board;
2. Service to the particular scheme –30% of marks– scored on the basis of the longest serving candidate;
3. Experience of a professional nature in the field of education and involvement in the school -20% of marks -scored at the discretion of the Board.
Section 5 of that Circular outlines an indicative list of appropriate areas of testing by Selection Boards in awarding marks under each of the headings.
On 11th January 2001 the complainant was interviewed by an interview board, comprising of Ms. Olivia Keenan who acted as chair of the board; together with Mr. Larry McCluskey, CEO with Monaghan VEC and Mr. Joe Brennan, business person and TUI nominee. As interviews for two other competitions were also held on that same day, the interview panel interviewed 19 candidates.
The Complainant’s Case
The complainant submitted that she was better qualified than the successful candidates not just in terms of academic qualification, but also in terms of her professional educational experience, involvement in educational management and involvement in the wider community. This rendered her the most suitable applicant for promotion to a SDT post.
She had nineteen years of service with Co. Monaghan VEC - 8 years as an Adult Education Organiser and 11 years as a teacher. She also maintained that her voluntary contribution to the school was superior to that of any of the other candidates. While other candidates had longer service as teachers, the complainant has greater service overall and was the oldest of all candidates.
The Respondent’s Case
The respondent rebutted the allegations made on the following basis: -
•There is insufficient evidence to conclude that the complainant was better qualified than the successful candidates.
•The marks allocated to the complainant under each criterion were appropriate both in terms of the information furnished on her application form and in terms of her performance at interview, and this was the major contributing factor in her failure to be selected, not her age.
•It was denied that there was a failure to keep notes at interview as a marking sheet was prepared for the interview and each candidate was allocated marks under each of the relevant criteria. A benchmark was agreed in relation to the two categories under the control of the Interview Board (‘capacity to meet the needs of the school’; ‘experience of a professional nature in the field of education and involvement in the school’). This was conducted after the first few interviews until a uniform standard of marking was established. Thereafter, each member of the Board marked separately and conferred at the conclusion of all interviews, to establish an order of merit. The marking sheet was signed by each member of the Board and an official minute of that meeting was signed by all.•The complainant’s performance at interview was very poor, in contrast to her ability to express herself on the application form. In comparison to other candidates, she failed to show enthusiasm or to highlight her involvement or successes to the same extent as other candidates. She demonstrated a narrow focus in relation to the future needs of the school. Others showed greater vision and competence in their ability to manage the school.
•The complainant’s contention that length of service equates to professional experience was contested, and Counsel for the VEC referred the Court toC-184/89Nimz v. Freie und Hansestadt Hamburg [1991] E.C.R. 1 -297in support of this.
•The complainant had failed to establish significant facts inferring discrimination in order to shift the burden of proof. Therefore, she had failed to establish aprima faciecase of discrimination on the age ground.
•The respondent contended that the Equality Officer was incorrect in his conclusion that the marks allocated to Ms. Carroll fairly reflected the information furnished by her on her application form and her performance in the course of the interview as compared to the successful candidates.
Witnesses’ Evidence
Mr. Larry McCluskey CEO with Monaghan VEC gave evidence to the Court. He stated that on the morning of the interviews, a meeting was held of all members of the Interview Board. This meeting took approximately half an hour. The relevant guidelines were circulated. Discussions were held on the number of positions to be filled; areas of questioning were decided and allocated to each of the three interviewers. The Interview Board were supplied with the curriculum vitae of all candidates.
It was confirmed for the Court that nineteen interviews were carried out on the day, which included selection for two other posts.
Mr. McCluskey stated that there was no practice of destroying notes, although they now have new formalised procedures for the taking and keeping of notes of interviews.
He explained how in advance of the day, administrative staff had calculated the service of each candidate using Circular 43/00 (as amended) as the guideline. These marks were allocated to the following criteria:
service to the particular scheme–30% of marks.
Mr. McCluskey explained that the complainant’s 8 years service as an Adult Education Officer was excluded from theservice to the particular schemecriteria (as per the guidelines) but was taken into account in thecapacity of applicant to meet the needs of the schoolcriteria, as was her service in the ‘B’ Post (equivalent to SDT) from October 1994 to July 1995. Her experience as an acting SDT post from September 1999 to October 2000 was not given the same credit, as it did not result from an open competition.
He stated that the complainant’s curriculum vitae was impressive. However, she did not present well at the interview. The Board were aware that the complainant had recently suffered a family bereavement. She seemed somewhat upset at the commencement of the interview and was asked if wished to resume at another date. Ms. Carroll assured the Board that she was happy to continue. Mr. McCloskey was of the view that Ms. Carroll focussed narrowly on her specialisation in the IT area. Her application included a list of accomplishments. However, he was of the view that these were accomplishments in which she had assisted others, whereas other candidates had fared better as they had demonstrated areas in which they had been leaders.
Mr. McCloskey said that the complainant lacked clarity in her performance at the interview.
Ms. Olivia Keenan gave evidence to the Court. She stated that the complainant “came across quite weak in comparison to the other candidates” and that she was surprised at her performance on the day as she is normally very good at debating. Otherwise, Ms. Keenan had no recollection of the marking system on the day and could not remember how candidates were selected.
Mr. Joe Brennan also gave evidence to the Court, this evidence tended in general to support Mr. McCluskey’s evidence. However, he indicated that markings were allocated after all twelve interviews had been completed.
Ms. Carroll’s evidence to the Court was that she had superior qualifications and experience than the successful candidates. She contended that she had prepared well for the interview, that she had answered questions competently and rejected the idea that her performance was weak on the day, despite her upset due to her recent bereavement. She was satisfied that the four areas where she demonstrated her abilities, were later identified as the areas of specific needs to the school. Her recollection of the interview was reasonably positive.
Burden Of Proof
Ms. Bolger, on behalf of the respondent, 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 her non-selection for promotion and her age. She 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 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 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 on 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."
- 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."
“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”.- 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 on the balance of probabilities he or she will fail.
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.
Conclusions of the Court
Having considered all the evidence presented to the Court, the Court makes the following observations: -
- the complainant was 48 years of age at the date of the competition - the successful candidates ranged from 24 to 40 years of age; the other two unsuccessful candidates were 32 years and 44 years of age.
- the complainant’s marks, put her in last place in the order of merit and were awarded as follows: -- capacity of applicant to meet the needs of the school -36 marks - service to the particular scheme – 16.5marks
- experience of a professional nature in the field of education and involvement in the school – 15marks
Having reviewed the details supplied to the Court regarding the qualifications and experience of the complainant and the successful candidates, the Court is not satisfied that she was better qualified than the successful candidates and that she did not have better professional educational experience. The Court accepts that her qualifications and experience appear to be equivalent in many respects to a number of other candidates and some candidates appear to be better qualified than her.
The Court also accepts thatthe complainant’s age was not referred to at any stage of the selection process.
The Court finds that two of the criteria for selection were at the discretion of the Board, for which no formal marking system was devised. The respondent indicated to the Court that the marks allocated to the complainant under each of these criteria were appropriate both in terms of the information furnished on her application form and in terms of her performance at interview.
Having examined in detail the marks awarded to each of the twelve candidates, it is evident that a pattern emerges whereby younger candidates received higher marks in the two categories, which the Board had discretion over. There appears to be a consistency, whereby those with short service, received high marks under these criteria and those with longer service, received lower marks,viz
Age Marks Marks Marks
50% 30% 20%
24 48 4.5 18 successful candidate
26 49 4.5 19 successful candidate
29 50 9 20 appointed to A.P. post
29 49 10.5 19 successful candidate
29 47 7.5 17 successful candidate
30 46 4.5 19 successful candidate
32 47 4.5 17 unsuccessful candidate
37 40 19.5 18 successful candidate
40 35 24 19 successful candidate
44 26 30 13 unsuccessful candidate
48 36 16.5 15 unsuccessful candidate
The Court is of the view that this ‘weighting’ of the marks in favour of the younger candidates is a fact, which may assist the Court in deciding whether or not there is, a primia facie finding of discrimination.
The Court also notes that the Board carried out the preparatory work associated with selecting candidates for three different types of posts; read through nineteen candidates’ curriculum vitae; conducted nineteen interviews and completed the selection process in one day. The evidence indicated that the interviews lasted for approximately 15 minutes each. It is difficult to see, on the basis of such a short interview, given that the complainant had above the necessary qualifications and experience, how the respondent could conclude that she should be ranked at the lowest of all candidates.
There were conflicting accounts of the scoring methodology used by the Board and this, coupled with the lack of memory of one of the Board members, leads the Court to the view that the process was not conducted with all the appropriate formality.
Based on the evidence heard and the submissions made, the Court is satisfied that the complainant has established certain facts which may led the Court to infer that there has been discrimination, whether intentional or unintentional, against the complainant on the grounds of her age.
The Respondent's Explanation.
It seems to the Court that in order to rebutthe presumption of discrimination the respondent must, as a minimum, offer a creditable explanation for the marks actually awarded to the complainant.
The respondent stated to the Court that the marks allocated to the complainant under each criterion were appropriate both in terms of the information furnished on her application form and in terms of her performance at interview and that in comparison to other candidates, she failed to show enthusiasm or to highlight her involvement or successes to the same extent as other candidates. The respondent said that she demonstrated a narrow focus in relation to the future needs of the school and that others showed greater vision and competence in their ability to manage the school.
The respondent indicated to the Court that the complainant was ‘positively discriminated’ against in relation to agevis a visother candidates as she received the third highest marks due to length of service. The Court is cognisant of the fact that these marks were calculated by reference to an agreed calculation while the other two criteria were at the discretion of the Board. When this mark is combined with the marks under ‘‘capacity of applicant to meet the needs of the school’are considered,and‘experience of a professional nature in the field of education and involvement in the school’she scored the lowest score of all candidates.
It is difficult for the Court to accept the respondent’s contention that the complainant’s failure on the day was due to the fact that she did a poor interview, when her qualifications and experience were essentially equivalent to the other candidates and at the appeal hearing, the respondent complemented her on her ability to express herself on the application form.
The Court is of the view that no satisfactory explanation has not been given for the reason why the complainant scored fourteen points less than the maximum points available, on the ‘capacity of applicant to meet the needs of the school’criteria.
The Board was unable to provide an explanation for the apparent ‘weighting’ of the marks in favour of the younger candidates.
The Court concludes that there was a certain lack of transparency in the process and finds that the scoring of qualifications and experience was not conducted in a structured way.
Therefore, the Court is satisfied that the explanations given by the respondent do not rebut the inference of discrimination. Consequently, the Court finds that the complainant was discriminated against on the basis of her age.It is not the function of the Court to decide on the best candidates for the positions, it’s sole function is to consider whether the applicant was discriminated against in the interview process on account of her age, and in this respect it has so found.
Determination
The onus is on the respondents to prove, on the balance of probabilities, that the reason for the complainant's non appointment to one of the SDT Posts was unrelated to her age. The Court finds that the respondent has not discharged that onus and the complainant is entitled to succeed.
Accordingly, the Court finds that the complainant was discriminated on grounds of her age. The Court upholds the Equality Officer’s decision directing the respondent to backdate the complainant’s appointment to an SDT Post to the same date as those appointed following the interviews in January 2001.
As the Court is not satisfied that the complainant was unduly distressed by her non appointment, the Court does not uphold the Equality Officer’s decision to award the complainant €10,000 compensation.
In relation to the matter of interview notes referred to in the Equality Officer's decision, this Court has consistently stressed that interview boards should keep comprehensive interview notes. The Court notes that the Equality Officer held that such notes should be made in respect of all interviews and retained for a minimum period of twelve months from the date of the competition. The Court upholds this aspect of the Equality Officer's decision.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd November, 2004______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.