DEC-E2005-029 Full Case Report

PARTIES MARTIN AND CONCERN (REPRESENTED ARTHUR COX, SOLICITORS)

1. DISPUTE
   This dispute involves a claim by Mr. Martin that he was discriminated against by Concern on grounds of gender and age, within the meaning of section 6(2) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act when it failed to shortlist him for interview for the post of Human Resource Officer in the course of a selection process in November/December, 2002.
   
2. BACKGROUND
   1. The complainant submitted his application and Curriculum Vitae to Concern in response to a newspaper advertisement which appeared in the Irish Times on 11 October, 2002 in respect of vacancies for the post of Human Resource Officer with the respondent. He was informed by Concern on 4 December, 2002 that his application had been unsuccessful and it would not be processing it any further. The complainant contends that he was as qualified to perform the duties attached to the post as the successful candidates and that he was treated less favourably on grounds of gender and age as he was not selected for interview following the shortlisting process conducted by the respondent. The respondent states that the selection process was conducted in a fair manner, that the complainant did not meet all of the criteria of the role as outlined in the job description/person specification and that his age or gender had no bearing on its decision not to shortlist him for interview.
   2. The complainant referred a complaint to the Equality Tribunal on 14 March, 2003. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, on 31 October, 2003 for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received from both parties and a hearing took place on 5 August, 2004. A number of issues emerged at the hearing which required further clarification and gave rise to correspondence subsequent to the hearing. This process concluded on 23 February, 2005.
      
3. SUMMARY OF COMPLAINANT’S CASE
   1. The complainant submitted his application and Curriculum Vitae in response to a newspaper advertisement which appeared in the Irish Times on 11 October, 2002 in respect of vacancies for the post of Human Resource Officer with the respondent. On 4 December, 2002 the respondent advised him that his application had been unsuccessful and it would not be progressing it any further. He argues that he possesses the necessary skills and experience (as set out in the job and person specifications) which were furnished to him by the respondent. He rejects the respondent’s contention that he did not fulfil all of the criteria for the post and contends that any objective assessment of his CV would demonstrate the contrary.
   2. The complainant argues that data furnished to him by the respondent supports his contention that he was discriminated against on grounds of gender and age. The respondent received 148 applications on foot of the newspaper advertisement – 39 males and 109 females. Thirteen applicants were interviewed, all of whom were female. He adds that 70 of the applicants were aged between 20-29 years and a further 65 were between 30-39 years. Of the remaining applicants 10 were between 40-49 years and 3 were over 50 years. The complainant states that all thirteen candidates interviewed were younger than 40 years – 6 in the 20-29 years category and 7 in the 30-39 years category. The complainant adds that the data furnished to him by the respondent also indicates that 7 male applicants who were considered to possess all of the essential attributes for the post were not shortlisted for interview. This data also indicates that six of the candidates over 40 years old were considered to possess all of the essential attributes for the post and none of these were shortlisted for interview. The complainant concludes on this point by stating that the selection process was conducted by two female staff members of the respondent. The complainant submits, in light of the foregoing, that he was discriminated against on the grounds cited because he is a male who is over 40 years of age.
      
4. SUMMARY OF RESPONDENT’S CASE
   1. The respondent states that it placed an advertisement in the Irish Times on 11 October, 2002 seeking applications for positions of Human Resource Officer. It received 146 applications (two applicants submitted two applications) all of which attached Curriculum Vitae. The respondent adds that it decided, in light of the volume of applications, to reduce the number of candidates to a manageable size and it therefore applied a screening process which shortlisted those applicants whom it considered to be the most suitable candidates for interview. This screening process comprised two phases. The first phase was carried out by Ms. R, Human Resources Officer and it sought to identify (a) applicants who clearly did meet the essential requirements for the post, (b) applicants who clearly did not satisfy the essential requirements for the post and (c) applicants whose CV did not clearly situate them in either category and required re-evaluation. The respondent states that the respondent was placed in category (c) at the end of this process and that the process reduced the numbers of applicants for further consideration to 75.
   2. The respondent states that the second phase of the screening process was conducted by Ms. G, HR Director in early December, 2002. It adds that Ms. G examined all 75 remaining applicants, assessed them against the job description/person specification for the post and reduced the number of applicants to 20. It further states that many applicants fulfilled the essential elements for the post but she selected those whom she considered to be the most suitable having regard to requirements of the post and the quantity and quality of the experience demonstrated in the CV’s in respect of the essential criteria for the position. Evidence of desirable criteria for the post was also a factor in her decision. Ms. G eliminated the complainant at this stage because she was not satisfied that he fulfilled all of the essential criteria for the post. In particular his CV was unclear as to whether or not the complainant had two years’ experience in HR or recruitment and it did not indicate experience of teamwork. The respondent states that of the 20 remaining applicants 13 were interviewed. This number was then reduced to four who completed a second interview from whom the successful candidates were selected (there were two posts).
   3. The respondent states that it furnished the complainant with information setting out the status of each of the applicants across the essential criteria for the post. It also met with the complainant in an effort to clarify issues for him. It submits therefore that the process was carried out in a fair and transparent manner. It adds that the selection process was carried out in a number of stages and that the each stage of the screening process was carried out by different employees of the respondent independently of each other and in accordance with the job and person specification – the document which was furnished to the complainant on 17 October, 2002 before he submitted his application - although it accepts that the employees involved in the screening process were both female. The respondent states that it did not require applicants to furnish their date of birth, although some applicants did so. It adds that in any event this information was irrelevant and had no bearing on the selection process.
   4. The respondent accepts that 39 of the applicants were male, that none were called for interview and that the 13 applicants who were eventually interviewed were female. It also accepts that all of the 13 applicants were under 40 years of age. It submits however, given that the vast majority of the applicants were female (107) and also that the 133 of them were under 40 years of age that the outcome (those selected for interview) is not surprising on a statistical basis. It adds that the data furnished to the complainant also indicates that there were 22 females who fulfilled all of the essential criteria who were not called for interview. In addition 23 applicants who were under the age of 40 years and also fulfilled all of the criteria were not called for interview. In submits that the foregoing does not support the complainant’s assertion of discriminatory treatment.
   5. The respondent concludes by submitting that the complainant has failed to establish a prima facie case of discrimination. It argues that all the complainant has established is that the successful candidates were female and under 40 years of age whilst he is male and over 40. It also submits that the statistical material furnished does not go far enough to shift the burden of proof to the respondent. It cites the Equality Officer Decisions in McCormick v Dublin Port Company and Hawkins v Irish Life and Permanent PLC T/A TSB Bank and the Labour Court Decisions in Southern Health Board v Mitchell and revenue Commissioners v O’Mahoney, Smith, Lovett and O’Tuama in support of its arguments in this regard.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. The issue for decision by me is whether or not Concern discriminated against Mr. Martin on grounds of gender and age, within the meaning of section 6(2) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act when it failed to shortlist him for interview for the post of Human Resource Officer in the course of a selection process in November/December, 2002. In reaching my decision I have taken into account all of the submissions, oral and written, made by the parties.
   2. The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 places the onus on the complainant to present, in the first instance, facts from which it may be presumed that discrimination took place. It is only when the complainant has established these facts to the satisfaction of the Equality Officer and s/he regards them as being of sufficient significance to raise a presumption of discrimination that the burden shifts to the respondent to rebut the inference of discrimination raised. It has become the established practice of this Tribunal and the Labour Court to operate a similar procedural rule as regards the burden of proof in relation to complaints of discrimination on the non-gender grounds and I propose to adopt this approach in respect of the complainant’s assertion of age discrimination in the instant case.
   3. The core of the complainant’s case is (i) he was as equally qualified for the posts as some of the candidates selected for interview, (ii) that there was procedural unfairness and a complete lack of transparency in the selection process, (iii) there was an absence of gender balance in the screening process as both were female, (iv) the respondent kept no notes of the screening process and there was inconsistencies between the two processes and (v) the data furnished by the respondent demonstrate a bias in favour of females over males and those under 40 years old as against those over that age. The respondent states that he did not fulfil all of the essential criteria for the post and was therefore not shortlisted. It adds that his age and/or gender had no bearing on this decision.
   4. I note that the respondent furnished the complainant (at his request) with a copy of the job description/person specification for the post on 17 October, 2002 – two weeks prior to the complainant submitting his application. I further note that these documents set out eight criteria which the respondent considered essential for the job and that the spreadsheet furnished by the respondent indicates these were the criteria across which all candidates were assessed in the course of the screening process. The screening process was conducted in two phases – the first phase reduced the number of potential candidates from 146 to 75 and was carried by Ms. R. The complainant emerged successful from this phase and was therefore not treated in a discriminatory fashion.
   5. The second phase of the screening process was carried out by Ms. G. The complainant was eliminated at this stage and if he suffered less favourable treatment it is at this point it would have occurred. In the course of the hearing Ms. G’s stated that she alone carried out this phase of the screening and that she evaluated the applicants across the eight criteria considered essential for the post. She added that this phase of the process yielded 20 applicants who, in her opinion, possessed a greater level of experience (both quantative and qualitative) than others who nonetheless fulfilled all the essential criteria and therefore most closely fitted the requirements for the post. She confirmed that she had eliminated the complainant at this stage because, in her opinion, the complainant did not meet all of the essential criteria – in particular his CV did not provide evidence under the Teamwork and Human Resource headings. I have examined CV’s of the 20 applicants who the respondent states were called for interview – 13 of them are clearly matched to the details previously furnished by it on the spreadsheet and 7 which cannot be matched to the same degree of certainty – and I am satisfied, on balance, that these documents are what they purport to be.
   6. Having examined these CV’s and that of complainant I am satisfied, on balance, that the information contained in the spreadsheet in respect of these applicants is fair and accurately reflects the situation as it was contained in the CV’s. The Labour Court stated in DIT v A Worker that “it is not the responsibility of the Equality Officer or of the Court to decide who is the most meritorious candidate…. The function of the Court is to determine whether the sex or marital status of the complainant …. influenced the decision of the Board.”. The Court also stated in DPP v Sheehan “…in the absence of unfairness in the selection process or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the selection board.”. In light of this guidance and taking the evidence submitted by the parties as a whole, I am satisfied that the complainant has failed to establish sufficient facts to suggest that the respondent conducted the screening process in a manner which was anything other than fair and equitable and free from discriminatory factors. Whilst not best practice, I do not consider the failure of the respondent to retain notes of the selection process (although I note it made notes at interview stage) and for the each phase of the screening process to be conducted by one person, to be sufficient of itself to constitute evidence of the operation of a discriminatory practice. I would suggest however, that the respondent reviews its procedures in this area if it has not already done so.
   7. I shall now deal with the complainant’s assertion that the statistical data furnished by the respondent supports his assertion of discrimination. It is fact that 39 (27%) of applicants were male and 107 (73%) were female. It is also fact that all 20 candidates shortlisted for interview were female. However, on closer examination of the data it emerges that only 7 male applicants fulfilled all of the essential criteria. This represents 5% of the total applications received. I also note the data shows that there were 22 female applicants who fulfilled all of the essential criteria and were not called for interview, representing 15% of the total applications received. When this data is examined on a gender basis in the context of applicants who fulfilled the criteria but were not called for interview, it results in 18% of the male applicants in that category and 20% of those female applicants .
   8. It is a fact that 13 (9%) of the applicants were over 40 years of age and 133 (91%) were under that age. It is also a fact that the 20 candidates shortlisted for interview under 40 years of age. When the data is examined it emerges that 29 applicants who fulfilled all of the essential criteria were not called for interview - 6 of whom were over 40 years old - which represents 4% of the total number of applicants and 21% of the applicants who fulfilled the essential criteria and were not called for interview. The gender breakdown of these 6 candidates is split evenly between male and female. When these figures are calculated as a percentage of the number of male and female applicants who fulfilled all of the criteria and were not called for interview it represents 43% of those male applicants and 14% of the female applicants in that category. Whilst at first glance these results would indicate a disparity between the applicants on a gender basis, it should be noted that the pool of male applicants comprising this category is 7 and the addition/subtraction of one person would have a significant impact on the result. In light of my comments in this and the preceding paragraphs I cannot accept that the statistics, of themselves, give rise to an inference of discrimination.
      
6. DECISION
   In light of the foregoing I find that the complainant has failed to establish a prima facie case of discrimination on the grounds cited and his complaint must therefore fail.