EDA059

Background.

The background to this case can be shortly stated as follows:

The Complainant is employed by the Respondent as a staff officer. She has 42 years service, 35 of which have been at her present grade. In 2002 a number of promotional opportunities arose with the respondent for Senior Staff Officer (Grade VI). The Complainant applied for one of these posts and was due to be interviewed on 8th March 2002. During the week preceding the scheduled interview the Complainant was invited to attend a pre-retirement course organised by the respondent, she being due to retire on 25th May 2005. The Complainant was concerned that her participation in the pre-retirement course might impact negatively on her chances of success in the competition for promotion and she discussed these concerns with Mr Michael Sands who was head of training with the respondent. Mr Sands assuaged the Complainant’s concerns and advised her not to cancel the pre-retirement course. He told her that her participation on this course would not be made known to the interview board. Mr Sands later participated in the interview board as a substitute member.

The Complainant was unsuccessful in the competition having been placed at 77th place. The candidate ranked as 75th was appointed. The Complainant concluded that the reason why she was not promoted was because of her age. She sought redress for discrimination on the age ground.

The Complainant's case.

The Complainant contended that while Mr Sands had previously assured her that no one on the interview board would know of her attendance at the pre-retirement course (and consequently her age), his participation on the interview board made her uncomfortable and affected her performance at interview. She also contended that in the course of the interview Mr Sands asked her “ What would you like to be remembered by”. This, the Complainant contends, indicated that her age was a factor in the consciousness of the interviewer. It also had the affect of unnerving her and further adversely affected her performance. Given the narrowness of the margin by which she failed to obtain one of the promotions, the Complainant contends that the participation of Mr Sands in the interview and the asking of the question complained of were decisive in denying her the opportunity to obtain promotion.

The Respondent’s Case.

The Respondent denied that any question in the terms alleged by the Complainant were put by Mr Sands. It was further denied that Mr Sands told his fellow interviewers that the Complainant had participated in a pre-retirement course or that the Complainant’s age was taken into account in any way in considering her application. Each member of the interview board gave evidence before the Court to this effect.

The Respondent also adduced evidence that each member of the interview board had experience of interviewing and had been trained in appropriate interview techniques. They had also been trained on the requirements of the Act and on the importance of avoiding questions at interview which could have a discriminatory connotation. The chairperson of the interview board involved in the instant case gave evidence that she was trained in conducting interviews and was experienced in so doing. She told the Court that had a question been asked which could be considered discriminatory she would have intervened and either rephrased the question or told the interviewee not to answer it. The witnesses recollection was that no question in the terms alleged by the complainant was asked at the interview.

Mr Sands gave evidence in which he denied asking the question attributed to him by the Complainant or any question of equivalent effect. He told the Court that his role at the interview was to probe candidates on the initiatives or changes which they had introduced in the areas in which they worked. His recollection was that he asked questions directed accordingly. The witness also recalled his conversation with the Complainant in relation to her concerns at participating in the pre-retirement course in advance of the interview. He told the Court that he had assured the Complainant that no one would know of her participation in the sense that only an official working in his (the witnesses) department would be privy to this information. The witness confirmed that he did not discuss this matter with his colleagues on the interview board. Mr Sands denied that he had any disposition against the Complainant on the basis of her age.

The Court was also told that the number of vacancies to be filled in the competition was unknown at time the interviews were completed. The candidates were ranked in order of merit and the allocation of posts was then determined by the number of vacancies which subsequently became available. Hence, the respondent submitted, the interview board would not have known whether or not the Complainant would be offered a promotion at the time the results of the interviews were finalised.

Conclusions of the Court

The Complainant contends that she was discriminated against on grounds of her age in not being appointed to the post of Senior Staff Officer (Grade VI) in terms of section 6(2) (f) and contrary to Section 8 of the Act. The Court has considered all of the evidence adduced and the submissions of the parties, an abridged summary of which is contained herein.

Ms N� Longáin, Solicitor for the Respondent, submitted that it is not open to the Court, nor was it open to the Equality Officer, to apply a shifting burden of proof similar to that prescribed by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001, in the instant case.

The allocation of the burden of proof in non gender cases was extensively considered by this sitting division of the Court in the recent case ofIcon Clinical Research Limited and Djemma Tsourova(EED054) Labour Court 11th March 2005. In that Determination the Court held that a procedural or evidential rule which transfers the probative burden to the respondent where the complainant establishes a prima facie case of discrimination is now applicable in all cases under the Act.

For the reasons more particularly set out in theTsourovacase the Court is satisfied that such a procedural rule is applicable in the instant case. Accordingly, the Court must proceed to consider if the complainant has established a prima facie case of discrimination on the age ground.

The now well established test for determining if a complainant has crossed this initial hurdle is contained in the Determination of this Court in the well known case ofMitchell v Southern Health Board[2001] E.L.R. 201, wherein the Court said:

• “It is necessary, however, to consider the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. 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 prove that there was no infringement of the principle of equal treatment.”