DEC-E2005-018 Full Case Report

Mr. John O’Mahony (complainant) Represented by the AHCPS vs Revenue Commissioners respondent):

1. DISPUTE
   1. The dispute concerns a claim by the AHCPS, on behalf of Mr. John O’Mahony against the Revenue Commissioners that he has been discriminated against on the grounds of age in terms of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act in relation to his treatment when he worked in the Internal Audit Branch and in failing to be upgraded in two competitions.
      
2. BACKGROUND
   1. The complainant is employed by the respondent organisation as an Inspector of Taxes. He alleges that he was treated less favourably on the grounds of age when he worked in the Internal Audit Branch. The complainant applied on two occasions for upgrading to the Higher Scale but was unsuccessful in his applications. It is the complainant’s contention that he was discriminated against on the grounds of age when he was not upgraded on these two occasions. The respondent denies the allegations.
   2. Consequently the complainant referred a complaint of discriminatory treatment to the Director of Equality Investigations on 11 th November, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 25 th June, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A joint hearing took place on 10 th March, 2005. Additional information was received from the parties and the final information was received on 8th April, 2005.
      
3. SUMMARY OF THE COMPLAINANT’S SUBMISSION
   1. The complainant alleges that, when he worked in the Internal Audit Branch, he was subjected to discriminatory treatment on the grounds of age. The complainant commenced work in this area in November, 2000. When he transferred into the area there was no accommodation available for him and he found himself being accommodated in temporary arrangements which, according to the complainant, inconvenienced other staff members. The complainant says that the main problem he had with his supervisor and other members of staff was their unwillingness to give him any formal introduction to the Audit procedures. On his first audit assignment in March, 2001 the complainant alleges that he was assigned a staff member from another team and this caused friction between himself and this person’s supervisor. Furthermore this person’s main contribution was to upstage him and expose his lack of experience. The complainant notes that his supervisor was not impressed with the quality of his first audit report and he issued guidance in a very hostile manner. In his performance review for 2001 the complainant’s supervisor stated that he was not satisfied with complainant’s performance for that year. It is the complainant’s contention that his supervisor gave an unfavourable verbal report on his first year’s performance in the Internal Audit Branch and this was the only reason given by the respondent for his failure to be upgraded in July, 2002.
   2. The complainant alleges that in June, 2002 he applied for upgrading to the position of Inspector of Taxes Higher Scale. 164 candidates applied of which 22 applied on the basis of “Experience/Track Record” (seniority) and 142 applied on the basis of both “Experience/Track Record” and “Merit”. According to the complainant he applied on the basis of seniority only as he was 8 th on the seniority list. The complainant states that 24 candidates were successful on the basis of seniority only and 25 candidates were successful on the basis of merit giving a total of 49 successful candidates. The reason the complainant was given for his failure to achieve a Higher Scale was that he “has not demonstrated a track record of delivery in the grade”. It is the complainant’s submission that he had served in Revenue for over 21 years having spent 3 years in the Revenue Training School, 10 years in Investigation Branch, 7 years in Dublin Audit District 10 (DAD10) and one year in Internal Audit Branch (IAB). The complainant states that he had always reached work targets set both in DAD10 and IAB. According to the complainant he was 60 years of age when he applied for this upgrading – his date of birth being 25th June, 1942.
   3. When the complainant sought feedback from his Assistant Secretary on why he was unsuccessful in achieving an upgrade to the higher scale he was told that, having consulted with his then supervisor and the Director of Personnel and Management Services on the taxes side of Revenue, he could not support his application taking account of his 2001 PMDS review and performance issues in the Chief Inspector’s Office. The complainant states that he checked this matter with the Director of Personnel and Management Services on the taxes side of Revenue and he strongly denied that he had any input to the decision. He, furthermore, indicated that he expected that the decision by the consistory of Assistant Secretaries was made by reference to their knowledge of the applicants and reports on file. The complainant says that, as far as he was aware, he had favourable reports on his work performance in DAD10. Consequently the complainant sought explanations under Freedom of Information and concluded that the reason he had not been upgraded was based entirely on his supervisor’s verbal report on his first year’s work in IAB and there was no record of any input by the Director of Personnel and Management Services on the taxes side of Revenue or that his work performance for the previous 20 years had been taken into account. The complainant says that his supervisor had also given a negative written report on his work in IAB to the Director of Personnel and Management Services on the taxes side of Revenue in July, 2002. It is the complainant’s submission that he only learnt of this in October, 2002 and he was told that it had been made in the context of promotion to Senior Inspector of Taxes and not in the context of upgrading.
   4. The complainant states that in early 2003 he sought to inspect his file which was held by the Director of Personnel and Management on the taxes side of Revenue and was told that factors other than his work performance mattered and that he should try to project himself more. He also mentioned that in matters of promotion the Revenue Commissioners also consider an applicant’s age. The complainant states that he realises that the Director of Personnel and Management on the taxes side of Revenue may have said this to him as a colleague but the complainant considers that he would have insights as to the factors which influence decision makers within the respondent organisation as to promotion/upgrading decisions.
   5. The complainant states that in April, 2003 he again applied for upgrading and was unsuccessful. This time the complainant was told that the consistory of Assistant Secretaries had not sufficient evidence of the following:
      1. Efficiency and Effectiveness Criteria
         Business needs in relation to the enhancement of efficiency and effectiveness relate to the achievement of the objectives of Revenue’s Strategy Statement and corporate priorities as set from time to time by the Board. In particular they include the need for improvement in such areas as:
         • the quality and speed of delivery of services;
         • the quality and effectiveness of compliance programmes;
         • enhancing Revenue’s capacity to research, develop and review programmes and policies;
         • support innovation throughout Revenue with particular reference to business processes and procedures;
         • delivering on the requirements of the public service modernisation programme in particular in the management of human resources and in the implementation of the performance management and development system;
         • the effective use of resources – human resources and information technology resources.
      2. Personal Criteria
         The personal criteria relevant to the selection process will include:
         • Officers with substantial experience and a track record of delivery;
         • Officers who bring particular application to their portfolio and deliver consistently;
         • Officers who display exceptional abilities or have developed and deployed skills which are critical to the Office;
         • Officers on long term business critical assignments.
      The complainant notes that as part of the process it was stated in the relevant circular that “the Deputy Secretary and each Secretary are being requested to arrange that candidates in their areas, whose applications will not be supported on this occasion, are personally consulted and advised by their managers of the position prior to the closing date for the competition. In this regard, candidates are requested to advise their Assistant Secretary of their candidature well ahead of the closing date for the competition to allow this process to be achieved. Candidates, who have been advised that their applications for upgrading will not be supported on this occasion, may still submit their applications to the consistory for consideration.” The complainant notes that he applied for the upgrading on 9 th April, 2003 and he had no contact from either his manager or the Assistant Secretary. His application was acknowledged by Personnel on 16 th April, 2003. The complainant states that he assumes that his application had the support of his manager and his Assistant Secretary.
      
4. SUMMARY OF THE RESPONDENT ’S SUBMISSION
   1. The respondent denies that the complainant was discriminated against on the grounds of age at the promotion conference held in June, 2002. According to the respondent the results of the conference show that one person who was older than the complainant was successful. The respondent says that at that conference applications for upgrading were considered by a consistory of Assistant Secretaries. The former Director of Personnel and Management Services was not involved in that consistory and had no knowledge of the deliberations that took place at it. The respondent says that the complainant was not successful in being selected for an upgrading as it was considered that he had not demonstrated a track record of delivery in his current grade.
   2. The respondent states that the former Director of Personnel and Management Services refutes the allegation that he stated that Revenue considers the applicant’s age when making a decision about upgrading. According to the respondent he can say this with certainty because of his awareness of the issues concerning age in the context of promotion. The respondent says that the Director of Personnel and Management Services has no recollection of age being raised as an issue during his discussions with the complainant.
   3. The respondent acknowledges that in relation to the 2003 competition its notification had indicated that candidates whose applications were not being supported by their Assistant Secretaries should be advised by their managers of the position prior to the closing date for the competition. It further acknowledges that this did not happen in the complainant’s application for upgrading.
   4. The respondent states that PMDS end of year reviews are an assessment of an officer’s performance in their current grade and not an indication of suitability for promotion or upgrading. It is the respondent’s contention that the fact that the complainant received a “very satisfactory” comment on his 2003 end of year review was not an indication of his suitability for promotion or upgrade. The respondent says that the complainant’s current line manager has indicated that he would support any future application for upgrading by the complainant and this position is supported by the complainant’s Assistant Secretary.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. The issue for decision in this claim is whether or not the complainant was discriminated against by the respondent on the grounds of age within the meaning of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 in relation to his treatment when he was in the Internal Audit Branch and when he was not upgraded in two competitions in 2002 and 2003.
   2. The complainant referred a claim alleging discrimination on the grounds of age in relation to his treatment in the Internal Audit Branch and in relation to his failure to get upgraded in two competitions in July, 2002 and May, 2003. His claim was referred on 11 th November, 2003. Section 77(5) of the Employment Equality Act, 1998 provides:
      
      “… a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates”.
      
      I note that the only incident which falls within the six months time limit is that of the upgrading competition in May, 2003. As the earlier competition also related to upgrading and as the complainant’s contention is that he was also discriminated in that competition on the grounds of age I am satisfied that both competitions should be investigated as there may be an issue of continuing discrimination. It is the complainant’s contention that he was told by the respondent that the only reason he was not upgraded on the first occasion was due to an unfavourable verbal report on his performance by his manager in relation to his first year in the Internal Audit Branch. The complainant alleges that his treatment in the Internal Audit Branch (see paragraph 3.1 above) was discriminatory on the grounds of age and that this ultimately had a negative impact on his first application for upgrading.
   3. In relation to the upgrading competitions I note that the respondent issued a Circular setting out the details of the proposed upgrades. Applications were sought from eligible officers and applicants were asked to indicate if they wished to be considered for upgrade on the basis of seniority or on the basis of merit. The complainant applied on both occasions on the basis of seniority. The applications were then considered by a consistory of all Assistant Secretaries who had staff who made applications for upgrade and the Assistant Secretary from Human Resources who acted as Chairperson. In total there are about 16 Assistant Secretaries in the respondent organisation. According to the respondent applications for upgrading on seniority were based on length of service and supported by line managers all the way up to Assistant Secretary. In the case of the complainant there was one line manager and the Assistant Secretary. I note that there is no evidence of any written report having been made available to the consistory on behalf of the complainant.
   4. In relation to the upgrading in July, 2002 the complainant notes that, according to the respondent, he received an unfavourable verbal report from his immediate manager in relation to his work performance. It is the complainant’s submission that he received favourable reports on work performance for the previous ten years and these were not taken into consideration. According to the respondent the purpose of upgrading is to reward exceptional persons in the grade and the process is not discriminatory on the grounds of age or on any other grounds. I have examined in detail the outline of the complainant’s experiences in the Internal Audit Branch and I am satisfied that he has failed to establish a prima facie case of discrimination on the grounds of age in relation to his treatment there. I note that reservations about the complainant’s abilities had been expressed previously in 1995 and 1996 by another manager. I am, therefore, satisfied that there was a concern in the respondent organisation about the complainant’s abilities.
   5. In the July, 2002 upgrading competition I note that there were 22 applicants on the basis of seniority and the complainant was the oldest of all these candidates. A total of twelve of these applicants were upgraded and I note that one of those upgraded was the same age as the complainant (being only 9 days younger than the complainant). In these circumstances I am satisfied that the complainant has failed to establish a prima facie claim of discrimination on the grounds of age in relation to the first upgrading competition.
   6. In relation to the competition for upgrading in May, 2003 I note that there were 16 applicants on the basis of seniority of whom 13 were upgraded. The complainant was the oldest applicant (being 60 at the time). The two other unsuccessful applicants were 50 and 55 years of age. I note that the successful applicants on the basis of seniority ranged in age from 44 to 59 years. Hence a number of the successful applicants who were upgraded were older than the two unsuccessful applicants. In these circumstances I find that the complainant has failed to establish aprima facie case of discrimination on the grounds of age in relation to this upgrading competition.
      
6. DECISION
   1. In view of the foregoing I find that the Revenue Commissioners did not discriminate against Mr. O’Mahony on the grounds of age in relation to his treatment in the Internal Audit Branch or in relation to his failure to be upgraded in two competitions.

Gerardine Coyle,
Equality Officer,
10th May, 2005