FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : CONCERN (REPRESENTED BY ARTHUR COX) - AND - ANTHONY MARTIN DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of The Employment Equality Act, 1998 Dec-E2005-029
BACKGROUND:
2. A Labour Court Hearing took place on the 29th November 2005. The following is the Court's Determination.
DETERMINATION:
Mr Anthony Martin (the Complainant) applied for the post of Human Resource Officer with Concern (the Respondent) in October, 2002. The Respondent did not shortlist the Complainant for interview.
The Complainant alleges that he was discriminated against by the Respondent in the competition on grounds of his gender and of his age. He made a complaint to the Equality Tribunal pursuant to Section 77 of the Employment Equality Acts, 1998 and 2004. The complaint was investigated by an Equality Officer who found against the Complainant. It is against that Decision that the Complainant appealed to this Court.
Submissions of the parties.
The submissions of the parties can summarised as follows:
The Complainant’s case
The Complainant is a 56 year-old man. He holds a MBS in Management & Organisational Studies and a BA in Accounting and Human Resource Management. It is the Complainant’s case that he met the essential requirements for the post which were set out in the newspaper advertisement and in the person specification developed by the Respondent. He claims that he was nonetheless excluded from the competition without being afforded an interview. The Complainant contended that the short-listing of candidates was undertaken by two women and that those who were selected for interview were all women and were under the age of 40. This, the Complainant contends, is indicative of a discriminatory disposition on the part of the Respondent against men and those over the age of 40.
Respondent’s case
The Respondent denies that the selection process was in any way tainted by discrimination. It received 146 applications for two vacancies. 107 of the candidates were women and 39 were men. Furthermore between 13 and 15 of the applicants, including the Complainant, were over the age of 40. All applicants submitted a curriculum vitae which was used to identify those candidates who met the essential criteria and those who did not.
The initial screening process was carried out by Ms Kate Rockingham, Human Resources Officer, who gave evidence before the Court. Ms Rockingham went through the full bundle of CVs and separated those which clearly met the essential criteria and those which did not. She also created a third bundle into which she placed applications on which she had some doubt and on which she sought the opinion of her senior colleague, Ms Gilroy.
Ms Rockingham formed the view that the Complainant’s CV did not disclose sufficient experience of team working nor did it indicate clearly that he had two years relevant experience, both of which were essential requirements. The witness was satisfied that the Complainant met all other essential requirements for the post. Having noted that the Complainant had previously worked for the Respondent, Ms Rockinghan decided to place his CV in the bundle for further consideration by Ms Gilroy. Ms Rockingham informed Ms Gilroy of her concerns in relation to the CVs in this bundle, including that of the Complainant. The witness accepted that from the information provided on the Complainant’s CV it would have been possible to establish his approximate age. She told the Court, however, that this was not a matter of any importance in the process.
Ms Barbara Gilroy, Director of Human Resources with the Respondent gave evidence before the Court. This witness went through the CVs which had been approved by Ms Rockingham and those which were put aside for further consideration. In her evidence Ms Gilroy expressed the view that applicants for employment must clearly set out in their CV the attributes and experience which they consider qualifies them for the job under consideration.
She said that where the information provided is vague or incomplete it is not her practice to speculate as to what a candidate intends to convey.
In relation to the Complainant’s CV, Ms Gilroy told the Court that it did not set out clearly his aggregate length of relevant experience nor the extent to which he had experience of team working. For these reasons she decided that the Complainant’s application would not be processed further.
At this stage in the process, Ms Gilroy reduced the number of remaining applications to 20. Following further screening of these applications the number was reduced to 13 candidates who were called for interview.
After the competition Ms Gilroy met with the Complainant so as to provide him with feed-back on his application. She pointed out to the Complainant the defects in his CV which resulted in him not being short-listed for further consideration. Ms Gilroy denied that the decision not to short-list the Complainant was motivated by his gender or his age.
Ms Gilroy accepted that while contemporaneous notes were made during the screening process, these notes were not retained.
Conclusions of the Court
Burden of Proof
The allocation of the probative burden in discrimination cases is now determined by Section 85A of the Employment Equality Acts 1998 and 2004. This Section gives legislative effect in domestic law to Directive 97/80 EC on the burden of proof in cases of gender discrimination and to Article 10 of Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Education.
This Section provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be presumed, it is for the Respondent to prove the contrary. The test for determining if the burden of proof shifts to the Respondent was formulated by this Court inSouthern Health Board v Mitchell[2001] E.L.R. 201, Here the Court set out the test, as follows:
- The first requirement of Article 4 of the Directive is 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 provethat there was no infringement of the principle of equal treatment.
This test has been consistently applied by this Court in cases under the Acts.
The primary facts asserted by the Complainant are that, contrary to the explanation given by the Respondent, he did meet the essential criteria for the post and that all of the 13 applicants interviewed were women under 40 years of age.
With regard to the selection process it must be noted that the Respondent received a particularly large number of applications for the post and not all applicants could be interviewed. It was thus necessary to set up a process of short-listing. Two experienced human resources specialists carried out this process. In previous cases the Court has held that in the absence of unfairness in the selection process, or manifest irrationality in the result, it will not seek to undertake its own assessment of candidates or substitute its views on their relative merits for those arrived at by the designated selectors (see most recently Determination No. 0416Robert Sheehan v Director of Public Prosecutions). Unlike other cases which involved the outcome of interviews, the impugned process in this case was conducted solely by reference to the CVs of candidates. The Court has seen the Complainant’s CV and has thus been in a position to assess at first hand whether or not it lacked clarity in the matters referred to by the Respondent. Having done so, the Court is satisfied that the conclusions drawn by Ms Rockingham and Ms Gilroy were rational and based on a reasonable construction of the document with which they were presented.
With regard to the gender and age composition of those called for interview, statistics such as those relied upon by the Complainant can be of probative value in raising an inference of covert discrimination or the presence of inbuilt or unrecognised bias. However, it is always a matter for the Court, having regard to all the circumstances of the case, to determine if the statistical evidence adduced provides a sufficient basis upon which such an inference should properly be drawn (see the decision of this Court inIMPACT v Irish Aviation Authority[2000] ELR 29.)
The Court notes that of the 146 applicants only 39 were men and all but between 13 and 15 of the candidates were under the age of 40. In these circumstances, and notwithstanding the careful and eloquent submissions of the Complainant, the Court is not convinced that the absence of any men or any candidate over the age of 40 in the final group of 13 is of sufficient significance to imply a discriminatory disposition on the part of the selectors.
Determination
Having regard to the foregoing the Court must find that the Complainant has not proved facts from which discrimination may be inferred. It follows that his claim cannot succeed. Accordingly the appeal herein is disallowed and the Decision of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
14th December 2005______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.