DEC-E2005-002 Full Case Report

1. DISPUTE
   
   1. The dispute concerns a claim by Mr. Arthur Broomfield that he was subjected to discriminatory treatment on the grounds of age in terms of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when he was not called for interview for the position of Arts Officer in the respondent organisation.
      
2. BACKGROUND
   
   1. The complainant applied for the position of Arts Officer with the respondent organisation which was advertised in 2002 with a closing date for receipt of applications of 14th November, 200 The complainant was not shortlisted for interview for the position and alleges that he was discriminated against on the grounds of his age. The respondent denies the allegations.
   2. Consequently the complainant referred a complaint to the Director of Equality Investigations on 18th February, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 10th February, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties a joint hearing of this claim took place on 26th November, 200 Further additional information was received on 7th December, 2004.
      
3. SUMMARY OF THE CLAIMANT’S SUBMISSION
   
   1. In the complainant’s referral form the complainant states that his application for the position of Arts Officer with the respondent organisation was turned down without an interview. He requested details of the ages and qualifications of all of the other applicants including those called for interview. The complainant states that this information was refused and he suspects that he was discriminated against on the grounds of age. The complainant states that his date of birth is 10th May, 1944.
   2. According to the complainant he applied for the position of Arts Officer with the respondent organisation in 200 He says that despite his qualifications (a B.A. and a M.A.) and his involvement with the Arts he was not considered for an interview for this position. Following mediation in this claim the complainant states that he received a pastiche of the applications that was unsatisfactory and could not be used as comparisons against his application.
   3. The complainant was critical of the length of time that he says it took for him to receive the document promised by the respondent after the mediation and he draws inferences from this delay and from what he describes as the doctoring of the applications. The complainant asks to see the applications in their entirety so that he can be assured of fair procedures in this investigative process. It is the complainant’s belief that his rights were violated and that the respondent went to extraordinary rounds to conceal or distort this violation.
      
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
   
   1. It is the respondent’s contention that the requirement is on the complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to him. Having regard to the Labour Court in its determination in the case of Teresa Mitchell v Southern Health Board² the respondent submits that the fact there may be an age difference between the successful candidate(s) and the unsuccessful applicant for a shortlisting for interview does not of itself require the Equality Officer to look to the respondent for an explanation. According to the respondent it is only required to offer an explanation if the Equality Officer finds a significant difference between the qualifications of the complainant and the candidates shortlisted for interview together with an age difference. The respondent submits that the complainant has offered no evidence whatsoever of any discrimination on the age ground.
   2. It is the respondent’s submission that the age of the candidates was not a factor in the selection process. According to the respondent the age of the candidates was not requested on the application forms and was not included in the shortlisting criteria. The respondent says that the members of the shortlisting board did not request, were not supplied with and were not aware of the ages of any of the candidates. On this basis therefore the respondent states that the Equality Officer will be unable to compare the ages of the candidates shortlisted for interview with the complainant as this information is not available to the respondent.
   3. According to the respondent the post of Arts Officer with the respondent organisation was advertised with a closing date of 14th November, 200 Fifty-eight applications were received and it was decided to convene an independent shortlisting board to shortlist candidates for interview. The board consisted of two persons namely a County Librarian and an Arts Consultant who were charged with the responsibility of assessing the applications on the basis of the relevant experience of the candidates. The methodology adopted by the board was to examine the information supplied by the candidates on their application forms in relation to education attainment and relevance of work experience in the area of a wide range of arts. From this exercise the board identified eleven candidates with strong experience of working in the area of the arts and recommended that they be called for interview. The respondent states that the complainant did not, in his application form, demonstrate the variety and depth of professional experience in a variety of arts that the board considered relevant to performing the duties of the post or compared to the candidates that were selected for interview.
   4. According to the respondent the successful candidates were chosen on the basis of the shortlisting process and age was not a factor and as none of the candidates were employees of the respondent organisation the respondent was not aware of their ages. Furthermore the shortlisting board did not know the ages of the candidates and no reference was made to age on the advertisement or the application form. The respondent refutes the allegation by the complainant that age is a barrier to his employment in the respondent organisation and says that it is an equal opportunities employer as was clearly stated on the advertisement for the post.
   5. The respondent denies that it delayed in forwarding details of application forms to the complainant following mediation as alleged and it denies that it went to“extraordinary rounds to conceal or distort the violation” as alleged by the complainant. It is the respondent’s submission that the complainant is grossly unfair in his allegations and attempts to impugn the integrity of its officials and the shortlisting board. The respondent notes that the complainant has failed to substantiate his claim of concealment or distortion.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   
   1. The issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of age in terms of Sections 6 and 8 of the Employment Equality Act, 1998. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by the parties.
   2. The respondent received fifty-eight applications for the position of Arts Officer and as a result convened an independent Shortlisting Board to shortlist candidates for interview. The function of this shortlisting board was to shortlist applicants on the basis of relevant experience having regard to the following criteria:
      • Experience/knowledge of public administration and local government in Ireland;
      • Experience/knowledge of the arts environment and arts policy in Ireland;
      • Experience/knowledge of the range of public and private supports available for local arts development;
      • Experience of presenting plans and proposals;
      • Formation of strategic plans;
      • Experience of liaising with different community/voluntary groups.
      Having carried out its assessment of the candidates, the shortlisting board shortlisted eleven candidates for interview. According to the respondent it was then that the qualifications of the candidates were considered. The complainant was not shortlisted for interview and it is his contention that the reason for his non-selection related to his age.
   3. In making a claim of discrimination the onus is on the complainant to make a prima facie claim of discrimination. It is only when a prima facie case has been established that the burden of proof falls to the respondent to submit a defence. Following the hearing of this claim the respondent provided details of the experience of the eleven candidates shortlisted for the position of Arts Officer. It was clear at the hearing of this claim that many of the applicants had enhanced their application forms with a CV. In his application the complainant had stated that he has a “deep interest in the arts, music, literature, painting, architecture. Write poetry – published Sunday Tribune, Poetry Ireland, … Read Poetry at Laois … Founder member of Laois Literary group, 1985”. He did not enhance his application with any further details of his achievements/experience. Having examined the further details provided by the respondent I am satisfied that each of the eleven candidates shortlisted for interview had greater overall experience in the field of arts than the complainant.
   4. The respondent did not seek on its application form details of the ages or dates of birth of the applicants for the Arts Officer position. However candidates were asked to complete the period when they attended school or college. While this may not provide an accurate age for each candidate it would indirectly provide a good indication of the age of the candidate. I note from this information that applicants for the position of Arts Officer ranged in age from 22 years to 61 years of age approximately and those candidates shortlisted ranged in age from 22 years to 49 years approximately. The successful candidate was aged about 39 years. At the time of interview the complainant was 58 years of age.
   5. In conclusion therefore I find that the basis on which applicants were shortlisted for interview for the position of Arts Officer with the respondent organisation related to their previous experience and I am satisfied that each of the eleven candidates shortlisted for interview had significantly more experience for the position than the complainant. There is no evidence that age was a factor in the decision on which candidates to shortlist for interview and accordingly I find that the complainant has failed to establish a prima facie claim of discrimination on the grounds of age.
      
6. DECISION
   
   1. In view of the foregoing I find that Offaly County Council did not discriminate against Mr. Arthur Broomfield as alleged in terms of Sections 6, of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.

Gerardine Coyle,
Equality Officer,
10th January, 2005

²Labour Court Determination – DEE011