Headnotes: Employment Equality Act 1998 - age ground - selection for promotion - access to training - harassment
Referral of claim:
1. Mr. Aiden Meehan referred a complaint against Leitrim County Council, citing direct discrimination on the age ground in relation to promotion and access to training, and harassment on the age ground. The complaint was referred on 2 October 2003. Mediation was unsuccessful and the complainant asked for a return to investigation on 15 September 2005. Submissions were received from both parties and a joint hearing was held on 6 March 2006. Further information was received from the respondent on 20 March 2006. The complainant did not take the opportunity to comment on that information.
Background to dispute
2. The complainant was a retained firefighter who was interviewed for the post of Sub Fire Officer in May 2003. He claimed that he had better qualifications and experience than the successful candidate and that he had been discriminated against on the age ground. He also claimed he had been denied access to training on the age ground. At the hearing he withdrew his complaint of harassment on the age ground.
3 Evidence presented to the Tribunal:
3.1 The following facts were agreed by both parties:
- There were 2 candidates for the position of Sub Fire Officer: the claimant was 48 at time of interview, the successful candidate was 32.
- The claimant had 17 years' experience as a retained firefighter at the time of interview, compared with 4 years' experience for the successful candidate.
- The complainant had been acting up as Sub Fire Officer for over six months at the time of interview, with no negative feedback, whereas the successful candidate had no such experience
- The complainant had completed Module 1 Sub-Fire Officer's course which the successful candidate completed after interview but before appointment (this course was an essential requirement for appointment as Sub-Fire Officer)
- Both candidates had completed the breathing apparatus and recruits courses.
- Although not a requirement for the job, the claimant had an HGV licence and had experience driving the Fire Appliance whereas the successful candidate had no such experience.
3.2 Claimant's written and verbal evidence to the Tribunal
Interview process:
3.2.1 The complainant asserted that he was not afforded a fair and equitable interview, in that:
- He was not given time to respond to questions, was interrupted and devalued
- The interview board looked surprised when he came into the room and he assumed it was because of his age.
- He was only asked questions of a technical nature, with no general questions to ascertain general suitability.
- In particular he was asked questions about a drill procedure which he considered did not exist and which is not included in the Handbook for the Fire Council of Ireland
- The board did not have a gender balance; he considered he would have related better to an interview board which included women.
3.2.2 The complainant added that the successful candidate had described to him a very different interview process, focusing on his football involvement and his ordinary job. His own interview had been very difficult and he had felt so thrown by the experience that "he wouldn't have known his own name afterwards".
Access to training
3.2.3 Subsequent to the interview the complainant said he was advised by 2 station officers and an assistant chief fire officer that only younger recruits were being trained up, as a cost cutting exercise and to maximise the value of the investment. However, he accepted that he had never been refused access to a training course.
3.3 Respondent's written and verbal evidence to the Tribunal
3.3.1 The respondent's representatives said that the complainant had been considered qualified for the job and had been placed second on the panel. On the general interview process, the respondent's representative argued that:
- The interview board placed candidates strictly on interview performance and there was no age discrimination. Each candidate was treated the same at interview. Interviews lasted about 25 minutes and there were a significant number of topics to be covered. The successful candidate performed better at interview than the complainant.
- As the complainant was not present at the successful candidate's interview, it is not open to him to comment on how that interview was conducted;
- The members of the interview board were all given a copy of the Notes for Members of Interview Boards, which contain procedures for the conduct of interviews and the Council's commitment to equal opportunities on all grounds, including the age ground.
- The fact that the interview board was all male could not indicate discrimination on the age ground.
- The ages of the candidates had not been requested on the application form. They argued that, although the candidate had indicated in his application form that his first job was in 1970, this did not necessarily imply his age.
- The respondent acknowledged that formal interview notes were not retained but contended that this in itself could not amount to prima facie evidence of discrimination.
3.3.2 The Chairman of the interview board gave evidence that he had received interview training in the 1990s, he had extensive interviewing experience both while he worked in local government and after his retirement, the complainant was afforded ample opportunity to provide the interview board with relevant information, and the complainant was not treated any differently from the successful candidate. He provided (undated) personal notes of the two interviews which he stated were transcribed, a day or two after the interview, from his contemporaneous hand-written notes. He explained that this was his normal practice as his handwriting was difficult to read. There were no other notes of the interview board available. The chairman's notes indicated that the lines of questioning for both interviews were broadly similar and focused mainly on the technical aspects but also gave an opportunity to each candidate to speak about relevant aspects of their outside hobbies or work which could help to demonstrate their possession of the required qualities. The notes contained virtually no information on the candidate's responses to questions.
Interview process
3.3.3 The respondent stated that the criteria for interview were:
1. Education (100 marks)
The criteria for awarding marks had been based on points for Group Certificate, ECDL and an engineering qualification (complainant)) and for Leaving Certificate (successful candidate). The complainant had been awarded higher marks than the successful candidate.
2. Experience and knowledge (Health & Safety 20 marks, Experience 90 marks, Knowledge 90 marks, total 200 marks).
- The respondent stated that the claimant and successful candidate had been awarded the same marks.
- There was no evidence available, written or oral, on the breakdown of the marks.
3. Suitability (200 marks)
Suitability was assessed on the basis of:
- Teamwork
- Leadership
- Communication
- Personality (enthusiasm and initiative)
The successful candidate scored 20% higher on this criterion overall. The chairman of the interview board stated that the successful candidate had scored well on each of these points, whereas the complainant had been less highly marked for leadership and enthusiasm. However there was no breakdown of the marks or any detail of how these aspects were assessed.
3.3.4 Subsequent to the hearing the respondent provided detailed statistics of the ages of all promotions from 2002 to 2005 inclusive.
Access to Training
3.3.4 The respondent stated that all firefighters across the county had equal access to training. They denied that the complainant was discriminated against, on the age ground, in relation to training. In particular they denied that their policy was only to train younger personnel. They stated that statistical evidence would not support any pattern of age discrimination and they asserted that the claimant had participated equally in available training. At the hearing they provided detailed statistics of training offered by grade and age.
4. Conclusions of the Director
4.1 The issues for decision by the Tribunal are:
a) whether or not the complainant was discriminated against on the age ground when at the age of 48 he was placed second on the panel for appointment as Sub Fire Officer in May 2003, while the successful candidate was 32, and
b) whether or not the complainant was discriminated against on the age ground in relation to access to training.
4.2 It is not of course the Tribunal's function to identify the most suitable candidate but to examine whether the selection process was tainted by age discrimination.
4.3 In accordance with established practice in cases before the Equality Tribunal and the Labour Court (1), the complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. Where this is done, it is for the respondent to prove the contrary.
4.4 In relation to a general point made by the complainant's representative that the existence of a retirement age of 55 was evidence of a predisposition to discriminate, I note that the Employment Equality Acts 1998 and 2004 provide that
"it shall not constitute discrimination on the age ground to fix different ages for the retirement ..of employees or any class or description of employees".
I note also that this contention was examined and rejected in a previous decision of the Tribunal (2).
4.5 Discrimination in Selection
4.5.1 The complainant's educational qualifications were higher than those of the successful candidate and this was accepted by the interview board and clearly reflected in the marking. The complainant's experience as a retained firefighter was greater than that of the successful candidate (see para 3.1). Overall I am satisfied that the complainant's qualifications and experience were greater than those of the successful candidate.
4.5.2 I note the decision of the Northern Ireland Court of Appeal in Wallace and the South Eastern Health Board (2) where it held
"the fact that the successful candidate was a man and the unsuccessful, but better candidate was a woman, is itself sufficient evidence of discrimination on grounds of sex as to shift the evidential burden to the employer."
I consider that by analogy this test is also appropriate in considering cases of age discrimination. I note also a recent Labour Court (3) determination that
"in cases involving promotion, a lack of transparency in the selection process combined with an absence of any discernible connection between the assessment of qualifications of candidates and the result of the process can in themselves give rise to such an inference".
4.5.3 In the light of the foregoing, I am satisfied that the complainant has discharged the evidential burden required of him to establish a prima facie case and it falls to the respondent to rebut the inference of discrimination raised.
4.5.4 I had regard to the respondent's statistical evidence in relation to success rates for selection for promotion. The numbers are too small to be statistically significant but I do not consider that they support a contention of systematic discrimination on the age ground. In relation to the composition of the interview board, I consider that the lack of gender balance on the interview board cannot be regarded as evidence of age discrimination. I am also satisfied that the interview board did have formal criteria and a basic marking system in place for assessing candidates.
4.5.5 The respondent strongly contended that the post was awarded on the basis of interview performance and it is clear from the complainant's evidence that he found the interview difficult and considered that he had not performed well. He attributed the difficulty of the interview to the board's bias against him because of his age. I cannot accept his contention that the board appeared surprised by his age given that it would have been clear from his application form that he had been working for over 30 years. He stated he was not given time to answer questions but was asked another question in 30 seconds or a minute's time. However, I note the short duration of the interview and the number of topics to be covered, and the example he offered tended to bear out the chairman of the interview board's evidence that they would probe further within an individual topic. The complainant also stated that his interview was less general than that of the successful candidate but, given that his evidence in relation to the other candidate's interview was hearsay, I accept on the balance of probabilities the evidence of the chairman of the board, supported by his notes, that the same broad approach was taken to both candidates.
4.5.6 In assessing the marking process, I have had regard to each element of the Interview Board's marking scheme.
- There is no issue round the award of higher marks to the complainant for "qualifications". The criteria were clear and were clearly adhered to.
- However, in relation to the marks awarded for "experience and knowledge", there is no evidence before me as to how the Interview Board reached their decision to award identical marks to both candidates for "experience and knowledge", given the complainant's significantly greater experience as detailed above.
- In relation to the marks awarded for "suitability", the only evidence presented to me was the Chairman of the Board's statement that the successful candidate performed equally well on all four elements whereas the complainant was weaker on leadership and initiative. However he was unable to explain how the Board had come to that conclusion.
4.5.7 I consider the absence of such evidence to be fatal to the respondent's defence. This is in line with numerous earlier decisions of the Tribunal and the Labour Court (4). Accordingly I find that the respondent has failed to rebut the prima facie case of discrimination.
4.6 Access to Training
4.6.1 I have carefully examined the statistical evidence presented by the respondent in relation to access to training and am satisfied that this reveals no pattern of age-related discrimination. I note that the claimant has not been refused access to a training course which he wished to follow and that he participated in relevant training in 2002, 2004 and in 2005 (no relevant training was held in 2003). I consider therefore that the claimant has not raised a prima facie case of discrimination on the age ground in relation to training.
5. Decision:
5.1 I find that, in relation to selection for promotion, the complainant has established a prima facie case of discrimination which the respondent has failed to rebut. I am therefore required to award redress for this discrimination. Accordingly, I direct that:
- the complainant be paid an award of €5,000. This is in compensation for the effects of the discrimination and does not contain any element of pay.
- the respondent review their equality policy to ensure that it is up to date, and in particular to ensure that all aspects of their interview processes are transparent and free from discrimination and that all interview notes are retained.
5.2. I find that, in relation to access to training, the respondent did not discriminate against the complainant on the age ground.
Melanie Pine
12 April 2006
(1) E.g. Southern Health Board v Mitchell [2001] ELR 201, O'Mahony -v- Revenue Commissioners EDA033
(2) (Leahy v Limerick City Council DEC-E2003-038).
(3) A Government Department v An Employee, ADE/05/19 Determination No. 062
(4) E.g. Carroll v Co. Monaghan VEC DEC-E2004-003, upheld by Labour Court EDA0415