EDA051

The Complainants Case.
The complainants’ told the Court that they had each expressed an interest in the disputed posts and had made application by submitting their CVs. The advertisement placed for the jobs, which was posted at the respondent’s premises, did not specify any requirements or qualifications for the posts but merely recited that vacancies existed for new employees and invited applications. Interviews were arranged and while Mr Nevins and Mr Flood were interviewed, Mr Murphy was not. Mr Murphy had previously applied for a permanent post with the respondent, in February 2002. He claims that he was not interviewed on that occasion either.

Both Mr Nevins and Mr Flood were interviewed by two managers, Mr Montgomery and Mr Kelly. Mr Nevins told the Court that his interview was brief and casual and that the questions which he was asked did not relate directly to his job as a docker or to the duties of the job to be filled. His recollection was that he had not been asked about his skills or his experience, nor was he asked if he was prepared to undertake training. Mr Nevins evidence was that he had not been asked any of the questions which, according to the respondent’s evidence to the Equality Officer, had been put to all candidates, (i.e. (i) do you have a problem with the hours involved, (ii) do you have a problem working with or taking orders from any Portroe stevedores staff, (iii) do you anticipate a problem working with the remainder of the rack, (iv) do you have any computer experience).

Mr Flood told the Court that he had been asked three of the questions referred to above but had not been asked if he had computer experience. He answered the other three questions in the negative. Mr Flood also recalled being asked his age at interview.

None of the complainants were formally advised that their applications were unsuccessful. They claim that they became aware of the outcome of the competition when the successful applicants started work with the respondent.

Each of the complainants contend that they had been available to undertake any training courses or programs offered to them and had in fact participated in a number of such programs. While the work experience of the complainants differed in terms of the plant and machinery which they regularly operate, they each claimed to be skilled in the operation of the various pieces of machinery used by the respondent in the course of its business. They each accepted, however, that they did not have the skills to operate a particular crane which the respondent had acquired prior to the disputed competition. They told the Court that they were never asked to undertake training in the operation of this crane nor were they offered such training. They were never told that in order to obtain appointment to permanent positions with the respondent they would have to undertake further or particular training. The complainants contend that the dockers appointed to the disputed posts could not operate the cranes referred to by the respondent and only received training in that regard after their appointment. Each of the complainants contended that their skill levels were at least equal to those of the successful candidates. The complainants were not made aware of any other component in the selection process apart from the interview.

It was contended on behalf of the complainants that the recruitment practice of the respondent showed a marked preference for candidates of a significantly younger age group than the complainants. In support of this contention the Court was referred to a list of 14 employees recruited by the respondent since its inception, excluding managers, showing an average age of 34.4 years.

It was submitted that the selection process, as it was applied to the complainants, was arbitrary and unfair and that the complainants’ applications were not seriously considered by the respondent. The deficiencies in the process, it was submitted, constitute facts from which discrimination may be inferred thus shifting the probative burden to establish the absence of unlawful discrimination to the respondent.

The respondent’s case.
The respondent told the Court that it employs 28-30 full-time employees and maintains a casual workforce of approximately 70 dockers through its subsidiary company, OML. Its principal business involves loading and discharging containers to and from vessels. It acquired Liebherr mobile cranes for this purpose but had difficulty in finding drivers capable of operating these cranes. On that account it had to obtain the services of operators from overseas at considerable cost. The vacancies giving rise to the present claims arose from a decision by the respondent to recruit extra staff that could be deployed in the operation of these cranes.

The respondent contended that the failure of the complainants to secure any of the vacancies was as a result of their refusal to undergo necessary training, which had been made available. It was said on its behalf that the successful candidates indicated their willingness and enthusiasm to avail of all necessary training to operate the requisite machinery and that this was the fundamental selection criterion.

The witnesses on behalf of the respondent told the Court that in order to maintain its business at Dublin Port it was necessary to enhance the skill levels of its operatives. This was particularly so in the case of those in the casual pool. The Court was told that in 2001 the Chairman of the Port Committee (the trade union group) had addressed a meeting of casual dockers on the need to avail of training so as to enable them to operate new plant and machinery. It was submitted that the complainants could not have been unaware of the technological changes arising in the workplace and that participation in further training would be necessary if they were to avail of new employment opportunities. The respondent told the Court that notices advising of training opportunities had been posted on a notice board at its premises and that these notices were frequently torn down.

The respondent submitted that the text of the advertisement for the disputed posts was deliberately general in nature so as to convey that the persons appointed would not be restricted to any particular functions. Approximately 14 applications were received in response to the advertisement. They were all from dockers working in the casual pool. It was the recollection of the respondent’s witnesses that Mr Murphy had been interviewed for another vacancy during the previous month and that it was considered unnecessary to interview him again. The respondent contended that Mr Nevins and Mr Flood were asked the standard questions at interview. They denied that Mr Flood had been asked his age.

The respondent told the Court that the interview was only a part of the selection process. The applicants for the vacancies were all known to the respondent whose management would have been aware of their attributes and shortcomings. It was decided that in addition to the interview an assessment of the candidates would form part of the selection process. In that regard evidence was given in relation to certain incidents involving Mr Nevins and Mr Flood which, it was contended, constituted misconduct which resulted in disciplinary action against them. This, it was said, was taken in to account in not appointing those complainants.

The respondent insisted that the age of the candidates was not considered in making a selection. The successful candidates were selected because of their existing skill levels, their willingness to undertake relevant training and their greater flexibility regarding work practices.

The respondent contended that interview notes were taken but had since been lost. No formal criteria had been established against which candidates were assessed.

Findings of fact.
The Court has carefully evaluated the evidence adduced and has had regard to the demeanour of the witnesses in giving their evidence. While there was a sharp difference of recollection between the complainants and the witnesses for the respondent on a number of salient points, the Court has reached the following conclusions, on the balance of probabilities, as to the material facts.

• It is clear that the respondenthad difficulty in obtaining workers to operate the LHM mobile cranes which it had acquired. The Court accepts that the respondent wanted to recruit workers who could be trained to operate these cranes safely and effectively. None of those who were members of the casual pool at the material time had these skills. Thus whoever was recruited from this pool would have had to undergo training and would have had to be willing and capable of being trained.
  • The Court is satisfied that none of the complainants were offered training in the operation of these cranes and, in consequence, could not have refused to undertake this training. Moreover, the Court is satisfied that the complainants were never advised, either generally or in relation to particular vacancies, that they would need to enhance their skill levels in order to be considered for permanent positions. The evidence indicates that the successful candidates also lacked the requisite skills to operate these cranes at the time of the competition and were trained to undertake this function after their appointment.

• • Mr Murphy was not interviewed for the disputed positions and the Court believes, as a matter of probability, that the witnesses who gave evidence for the respondent are mistaken in their recollection that he had recently been interviewed for another vacancy. There is no record of any such interview or other documentary evidence to show that he was ever invited to interview at the relevant time. The interview of Mr Nevins and that of Mr Flood appear to have been unstructured and conducted nonchalantly.

• • In so far as an assessment of candidates was undertaken by the respondent as part of the selection process, it was subjective and appears not to have been based on consistent or predetermined criteria. The complainants were not told that an assessment was being undertaken nor were they provided with an opportunity to address concerns which the management may have had as to their competencies or past performance. The Court accepts that the complainants were not directly or personally advised that their applications were unsuccessful.

• • The Court accepts that Mr Flood’s recollection of his interview is substantially correct. In that regard the Court accepts, as a matter of probability, that Mr Flood was asked his age at interview.

• • The evidence adduced concerning the pattern of recruitment by the respondent into general operative positions since its inception in 1992, show that the breakdown by age as of March 2002, was as follows:
    
    • • 60 > 1 (Now a Director and Manager)
        
        51- 60 0
        
        41-50 1
        

• • 
    While this is not formal statistical evidence in the strict sense, the Court regards it as having some probative value and indicating a preference on the respondent’s part for employees under the age of 40.

It is not the Court’s function to determine who was the most meritorious candidate for the disputed position. Rather, its role is to establish if the selection was tainted by unlawful discrimination. In that regard, it is generally acknowledged that cases of alleged discrimination present special problems of evidence and of proof. Those who discriminate unlawfully rarely do so overtly and do not leave evidence of the discrimination within the complainant’s power of procurement (seeNakoto v Citibank [2004] 15 ELR 116).

Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence” (see Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at 576).

In the case of age discrimination particular additional difficulties can arise. There can be problems of definition in that, unlike the other proscribed grounds, there is no definitive point of distinction between the young, the middle aged and the old. These classifications, particularly at their interface, are often based on perception or opinion which can vary from one individual to another. Ageism, in relation to employment, is generally the product of an attitude of mind which stereotypes those above a certain age as less adaptable to change, or more difficult to train in new skills, or less willing to take on new work practices.

Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration.

Burden of Proof.
It is accepted that if the complainants make out a prima facie case of discrimination the burden of proving the absence of discrimination shifts to the respondent. The appropriate test for determining if that burden has shifted is that formulated by this Court inTeresa Mitchell v Southern Health Board [2001] ELR 201. This test places the initial burden on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent.

There is no exhaustive list of factors which can give raise to an inference of discrimination. Nor is it necessary in every case involving access to employment for a complainant to prove, as a matter of primary fact, that their qualifications are superior or equal to those of the successful candidate before the probative burden can shift. Were it otherwise an unduly onerous burden could be placed on a complainant since the details of the successful candidate’s qualifications might not be within their power of procurement.

Applying those principles to this case, the Court is satisfied, on the evidence, that the selection process, as it was applied to the complainants, was not used to ascertain if they were genuinely interested in acquiring the skills necessary for the jobs available or to assess their suitability for those positions. The Court is also satisfied, from the primary facts found and set out in this determination, that the complainants’ applications were not taken seriously by the respondent and that, in all probability, the decision not to employ them was taken before the formal selection process commenced. Further, the question put to Mr Flood at interview concerning his age and the data concerning the age profile of those recruited by the respondent since 1992, establishes an evidential nexus between the unfair treatment of the complainants and their age. These are facts of sufficient significance to establish a prima facie case of discrimination and so shift the probative burden to the respondent.

Conclusion.
The respondent must rebut the presumption of discrimination which arises in this case. The quality of evidence necessary to discharge that burden was recently considered by the Employment Appeals Tribunal for England and Wales, inBarton v Investec Henderson Crostwaite Securities Ltd [2003] IRLM 332. Here it was held that since the facts necessary to prove an explanation would usually be in the possession of the respondent, a tribunal should normally expect cogent evidence to discharge that burden. That decision is of persuasive authority and the Court has adopted a similar approach in the instant case.

The decision not to appoint the complainants was taken on foot of a recommendation made by Mr Montgomery and Mr Kelly (both of whom are managers with the respondent). Mr Montgomery gave evidence before the Court to the effect that the selection was based on an interview of the candidates and an assessment of their skills, performance and general suitability. Mr Kelly did not give evidence. The Court was not furnished with contemporaneous notes of the interviews and it appears that none exist. It also emerged in evidence that there were no documented criteria against which the assessments were made nor are there records of the results of the assessment.

The Court has previously found it necessary to emphasise that processes used in making selection for employment must be sufficiently transparent and examinable so as to satisfy the Court that the result was not tainted by discrimination. InDetermination No EDA039 –Daughters of Charity v Martha McGinn,and more recently inDetermination No 0412 Department of Health and Children v John Gillen,the Court found that the failure of the employer to maintain interview notes and assessment records was fatal to their defence against allegations of discrimination.

Mr Montgomery gave evidence to the effect that the age of the complainants was irrelevant in the decision not to appoint them to the vacant positions. He also gave evidence as to the perceived capabilities and reliability of the complainants. Other witnesses for the respondent corroborated Mr Montgomery’s evidence on this latter point. Nonetheless, in the Courts view, this evidence does not provide an adequate explanation for the respondent’s failure to fairly use the selection process to assess the complainants’ suitability for the jobs or for the absence of any reasonable degree of transparency in that process as it was applied to the complainants. For that reason, and in the absence of any interview notes or other records of how the results were arrived at, the Court does not accept that the evidence of the witnesses for the respondent goes far enough to discharge the probative burden which the respondent bears. Accordingly, on the evidence adduced before it, the Court has diverged from the decision of the Equality Officer and has come to the conclusion that each of the complainants was discriminated against on the age ground and is, accordingly, entitled to succeed in this appeal.

Determination.

The Court determines that the respondent discriminated against the complainants, namely, Patrick Nevins, Brian Murphy and Anthony Flood on the age ground contrary to Section 8 of the Act in failing to fairly consider their application for employment to the position of permanent general operative. The Court notes that the second and the third named complainants have now retired and thus considers that the appropriate redress in their case is an award of compensation. The Court awards Brian Murphy compensation for the affects of the discrimination which he suffered in the amount of €7,000 and similarly awards Anthony Flood €7,000 for the affects of the discrimination which he suffered.

The Court considers that the appropriate redress in the case of Patrick Nevins is an order that the respondent employ him as a general operative on the same terms and conditions as are currently applied to the those recruited following the impugned competition in March 2002, and that he be provided with the training necessary to undertake the duties of that position. This order is to take effect one month after the date on which it is issued. The Court further determines that Patrick Nevins be paid compensation in the amount of €4,000 for the affects of the discrimination which he suffered.

The appeal herein is allowed.






Signed on behalf of the Labour Court



Kevin Duffy
11th February, 2005______________________
MG.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.