Mr A
-v-
A Government Department
1. DISPUTE
1.1 This dispute concerns a claim by a complainant that he was discriminated against by a Government Department on the ground of age, contrary to the provisions of the Employment Equality Act 1998, when he was not considered for promotion.
1.2 The complainant referred a claim to the Director of Equality Investigations on 5 April 2004 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 8 February 2005 to an Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. For operational reasons the Equality Officer was unable to complete the investigation, and on 9 June 2005 the Director re-delegated the case to Anne-Marie Lynch, also an Equality Officer. Submissions were sought from the parties, and joint hearings were held on 27 January and 19 May 2006.
2. SUMMARY OF THE COMPLAINANTS' CASE
2.1 The complainant, who was a Higher Executive Officer in the Government Department, says that he was presented with a form in mid-September 2003 seeking his agreement to be considered for promotion at a forthcoming consistory (promotion conference). The complainant noticed that the consistory had taken place on 3 September, but was assured that further conferences were scheduled for October and November, and he therefore signed the form indicating his agreement.
2.2 The complainant says that his Assistant Secretary summoned him and a colleague to his office in early October to inform them that they had not been considered suitable for promotion at the consistory held on 3 September. The Assistant Secretary allegedly said that he was unaware of the reasons for this decision as he had not attended the consistory, but had been represented by a colleague. On 16 October, the complainant received written confirmation of the result of the consistory.
2.3 This letter, from the Human Resources Division, notified the complainant that he was not considered suitable for promotion, and said that his Assistant Secretary, or a person nominated by him, would speak to him to outline the reasons for the decision. A Promotion Conference Marking Sheet was attached to the letter. This was signed by the Chairperson of the Promotion Conference, and was in the following terms:
Discussions regarding candidate was broadly based on the following competencies:
1. Appreciating the Wider Context
2. Using Resources Effectively
3. Interpersonal Effectiveness
4. Leadership
5. Commitment to Quality Results and Self Development
6. Working under Pressure
Comments:
Officer has not demonstrated the competencies required to serve at the grade of Assistant Principal
Summary
Candidate is suitable for Promotion | |
Candidate is not considered suitable for Promotion on this occasion | x |
2.4 The complainant wrote to Human Resources on 27 November, saying "As my case was considered in the absence of my Assistant Secretary and as nobody has spoken to me outlining any reason for the decision taken, I believe that the organisation did not afford me an equal opportunity nor did it treat me, or my candidature within the spirit of the [Government Department's] policy on "Equality in [the Government Department]...". The complainant requested a copy of the transcript of the consistory of 3 September. Following a reminder from the complainant dated 22 January 2004, he received an acknowledgement letter on 23 January and a substantive reply dated 29 January.
2.5 This letter was signed by the Assistant Secretary in Human Resources, who had also acted as the Chairperson of the Promotion Conference. The letter repeated that it was intended that a member of the complainant's management should discuss the outcome of the promotion conference with him. It said that the colleague who had represented the complainant's Assistant Secretary had consulted with the complainant's management regarding his suitability. The letter said that, while it had been agreed that the complainant was performing well in his current grade, it was felt he had not demonstrated the listed competencies at the level required "to perform at Assistant Principal grade in a changing [Government Department] environment".
2.6 After a period of time when he received no further feedback regarding the consistory decision, the complainant concluded that the respondent had discriminated against him by treating his entitlement to consideration for promotion less favourably than the treatment afforded to all others concerned. He further concluded that he was discriminated against on age grounds as he was of a more advanced age than those treated more favourably. Consequently, the complainant referred his claim of discrimination to the Tribunal on 5 April 2004.
2.7 When notified of the first hearing date for the claim, the complainant submitted that matters had deteriorated since his initial referral. He alleged that a further consistory was held in May 2005, where his candidacy was not considered, and that he had been forced to resign his position under distress in June 2005 when the discrimination against him had become victimisation.
2.8 The complainant asserts that he had several conversations with his Assistant Secretary during April 2005, after the respondent had received his initial written submission regarding his complaint. He says the Assistant Secretary was initially unsure as to who had attended the consistory of October 2003 on his behalf. The complainant says he was subsequently provided with a note written by another Assistant Secretary, who indicated he had been the deputy for the complainant's Assistant Secretary. The deputy confirmed that there were no discussions at the consistory which related, by implication or otherwise, to the complainant's age or to any link between his age and fitness for promotion. The deputy further said that he did not possess any notes relating to individual candidates, but said that from his period as Assistant Secretary in the complainant's division (roughly during May 2000 to May 2002), his recollection was that the complainant's performance "as a Higher Officer" had been represented to him by the Principal Officer as about average for the grade.
2.9 The complainant says that he accepted that no direct reference to his age had been made at the consistory. What he was contending was that nothing at all had been said about his fitness for promotion, that he was not considered for promotion and that the Promotion Conference Marking Sheet was fictitious. The complainant pointed out that the deputy Assistant Secretary made no reference to having represented the complainant at the consistory and did not refer to having consulted the complainant's management regarding his fitness for promotion.
2.10 The complainant says that on 3 May 2005 his Assistant Secretary summoned him to his office, to inform him that he had received a negative assessment from his Principal Officer in relation to a forthcoming consistory. The Assistant Secretary asked the complainant to sign the assessment and told him to discuss it with the Principal Officer. The complainant says he did sign as requested but indicated he would first speak to his Assistant Principal. The complainant says that on further consideration he concluded it was not his responsibility to initiate such a discussion.
2.11 The assessment form simply asked the question: Is the applicant deemed suitable for consideration for promotion at this Promotion Conference?, to which the Principal Officer answered "No". In the comment field he inserted the remark: "[The complainant] is a competent HEO but has not, in my opinion and following consultation with his AP [name] demonstrated that he has or would be able to acquire the competencies required for the grade of AP to a sufficient extent."
2.12 The complainant submitted copies of his annual reviews for the years 2002, 2003 and 2004. These demonstrated that he had been assessed on each occasion as having achieved his performance indicators and having displayed the knowledge and skills and competencies and standards required for his role. In addition he was found in both 2002 and 2003 to have met the requirements of his role and exceeded them in a number of aspects. In his 2004 review, completed in January 2005, his Assistant Principal appended the following remark: "Excellent official - produces work of high quality and standard - guides and coaches other staff members - willing to share knowledge and explain procedures and practices".
2.13 The complainant says the sudden contrast indicated something sinister to him and suggested that he might now be subject to victimisation. He says that he contacted Human Resources on 11 May to say that the "sweeping derogatory remark" would deprive him of his entitlement to be considered for promotion. The complainant says that since he had not received a reply from Human Resources by 10 June, he concluded that his future career prospects had been annihilated. He says that he resigned his position in a most distressed state on 16 June.
2.14 The complainant joined the public service at the age of 15 years, and he says that his most unusual length of service was a topic of discussion at tea breaks. He suggests that the staff member who presented him with the option form in September 2003, when he was approaching 60 years of age, was influenced by these conversations and assumed he was not interested in promotion as he could be about to retire. He asserts that a culture of indifference towards older persons' rights prevails in the respondent department and that he was a victim of this cultural indifference, together with some individuals' gross neglect of their responsibilities. He says he continues to be very distressed, hurt and annoyed that he should be deprived of his entitlements because of advancing years at the end of a long and loyal career.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent says that the complainant was considered for promotion at the September 2003 consistory, and that he had completed an option form in July 2003 consenting to be so considered. It says that his Assistant Secretary was ill at the time and was represented by a deputy, and that normal practice in such situations is that the deputy is briefed by the person s/he is replacing. The respondent says that each candidate's performance was discussed in the context of their ability to take up duty, having demonstrated competence at the appropriate level to the Assistant Principal grade in the areas referred to in paragraph 2.3 above. The respondent says the complainant was considered to be performing well in his current grade, but that it was felt that he had not demonstrated the competencies at the level required to perform at Assistant Principal in a changing environment.
3.2 The respondent points out that the deputy Assistant Secretary stated that "Nothing in the discussions at that consistory related, by implication or otherwise, to [the complainant's] age or to any link between his age and fitness for promotion." The respondent says that further evidence countering the complainant's allegation that he was discriminated against on the ground of age could be extracted from the final results of the consistory, which demonstrated that two of the successful candidates were older than the complainant.
3.3 The respondent says that minutes of consistories are not kept, so it is unable to produce such documents in support of its case. However, it says it relies on the comments on the marking sheet indicating the complainant was considered not suitable, the letter to the complainant on 29 January 2004 from Human Resources indicating he had been considered and deemed unsuitable and the factual position regarding the ages of the successful candidates. The respondent contends that, while processes in the case may have been flawed, there was no evidence of discrimination in the decision made by the consistory in September 2003.
3.4 The respondent says that the complainant was told by his Assistant Secretary prior to the May 2005 consistory that he was not being recommended for promotion, and he was advised to discuss his assessment with his Principal Officer. The respondent says the Principal Officer indicated on 11 May that he was available for this discussion, but the complainant declined the opportunity.
3.5 The respondent says the complainant subsequently sent an email to Human Resources saying he was not happy with the assessment. It says that normal practice is that a candidate would be asked if s/he wished to appeal the assessment, but the respondent could find no record that the complainant was contacted. It says that his email was treated as an appeal to the consistory. The respondent says the consistory considered the appeal and, on the basis of the evidence presented, decided that there were not sufficient grounds to overturn the Principal Officer's assessment. The respondent notes that the complainant's reviews indicated that he was performing well in his current grade, but points out that annual reviews do not assess suitability for promotion to the next grade.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the ground of age contrary to the provisions of the Employment Equality Act 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including age. Section 8 provides that
(1)In relation to-
...(d) promotion or re-grading...
an employer shall not discriminate against an employee or prospective employee...
4.3 The Labour Court, in a recent determination of a claim on the disability ground (A General Practitioner and A Worker - Determination No EED062) said "It is now well settled that in cases of discrimination it is for the Complainants to prove the primary facts upon which they rely in asserting that they have suffered discrimination. If those facts are proved and they are regarded as sufficient to raise an inference of discrimination, the onus shifts to the Respondent to prove the absence of discrimination. In all cases the standard of proof is the normal civil standard; that is to say the balance of probabilities." The first matter to be addressed, therefore, is whether the complainant has established the relevant facts.
4.4 The essence of the complainant's case is that he was not considered for promotion at the September 2003 consistory, that he was not given the promised feedback and advice on career development and that the Principal Officer's assessment of him in relation to the May 2005 consistory constituted victimisation and destroyed all of his prospects of promotion within the respondent department. The respondent's case is that the complainant was considered in September 2003 but found unsuitable, and that he was offered the opportunity to discuss his negative assessment in May 2005 but declined the opportunity.
4.5 I note that the January 2004 letter from the Assistant Secretary in Human Resources said that the deputy Assistant Secretary had consulted the complainant's management regarding his performance. It was the complainant's evidence that he had been informed that his management was not consulted, and at the first hearing the respondent's representative said that it would be normal practice for the deputy to be briefed by the Assistant Secretary. Neither Assistant Secretary gave evidence. However, I did have the opportunity to examine the note written by the deputy Assistant Secretary in April 2005 and referred to at 2.8 above. In that note, no reference whatsoever is made to any consultation with the complainant's management or any briefing by the complainant's Assistant Secretary. The deputy Assistant Secretary referred to the complainant's abilities and performance only in the context of his recollection of conversations with the complainant's Principal Officer some years previously.
4.6 In explaining that he did not possess any documents relating to individual candidates, the deputy Assistant Secretary described the January 2004 letter from Human Resources as follows: "The issued formal statement from HRD re non-demonstration of competencies is, I believe, a type of standard statement that issues to many (if not most) unsuccessful candidates considered by promotion consistories." Having considered the matter closely, I am satisfied that the Assistant Secretary is correct in this belief. The complainant's management was not consulted, the deputy Assistant Secretary was not briefed and no evidence was adduced that the complainant had been assessed in relation to his suitability for promotion. On balance, I conclude that the complainant was not considered, or not properly considered, for promotion at the September 2003 consistory.
4.7 Regarding the consistory of May 2005, the complainant was formally assessed by his Principal Officer, but found to be unsuitable for promotion. However, it is clear that he was not assessed in terms of any objective competencies. Rather, the Principal Officer starkly stated that he had not demonstrated that he had or would be able to acquire the necessary competencies.
4.8 The respondent correctly made the point that annual reviews are not intended to assess suitability for promotion. Nonetheless, it is difficult to reconcile the review of the complainant in January 2005 which described him as an "excellent official" (see 2.12 above) with this overwhelmingly negative assessment, without possibility of improvement, in April 2005. As the Principal Officer did not give evidence, I was unable to question him regarding his conclusions. The Human Resources personnel at the hearing indicated that he had denied that he had discriminated against the complainant.
4.9 The respondent acknowledged at the hearing that proper procedure may not have been followed regarding the appeal to the consistory, in that it appears the complainant was not asked if he wished to make an appeal. However, in written submission the respondent said that, having considered the evidence, the consistory concluded there were not adequate grounds to overturn the Principal Officer's assessment. Since it is clear that no evidence was presented, I am unable to see how the consistory could have reached any such conclusion. Given the fact that no minutes were recorded at consistory, the respondent is unable to demonstrate that the consistory gave any consideration to the complainant's candidacy.
4.10 The Labour Court recently considered the factors which can give rise to an inference of discrimination in the case A Government Department and An Employee (Determination No EDA062). Pointing out that there was no exhaustive list of factors, the Court said "However, in cases involving promotion, a lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can in themselves give rise to such an inference....the Court is satisfied that the procedure followed in this case, and the result which it produced, were so discordant with normal standards of reasonableness and objectivity that they must constitute facts from which it may be presumed that there has been discrimination in relation to the complainant." I am satisfied that this reasoning applies to this complaint.
4.11 The Labour Court dealt extensively with discrimination on the age ground in the case Portroe Stevedores and Nevins, Murphy and Flood (Determination No 051). The Court commented that it "...must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution." It is clear that the respondent in this case does not have independent corroboration to offer, as no documentary evidence exists.
4.12 In the earlier case of Department of Health & Children and John Gillen (Determination No 0412) the Labour Court said "The presence of a single successful candidate who was in the same age group as the complainants does not disprove age discrimination...The consistory process, however well intentioned and conducted, appears to be a subjective process, and, therefore, it is essential that records be kept of this decision-making process in order that it may be seen to be open and transparent...The lack of any records both in relation to the interview and the consistory process are in the view of the Court an insuperable difficulty when attempting to prove the contrary." I am satisfied that the respondent in this case has also failed to prove the contrary, despite the fact that two successful candidates were older than the complainant, and I find that the respondent discriminated against him on the ground of age.
4.13 The complainant alleged that he was victimised in relation to his assessment for the May 2005 consistory. Victimisation is defined by section 74 as occurring where
dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act...,
(e) an employee having been a witness in any proceedings under this Act...,
(f) an employee having opposed by lawful means an Act which is unlawful under this Act...,
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
4.14 The complainant did not adduce any evidence that either the negative assessment by his Principal Officer or the way in which his candidacy was dealt with by the consistory were influenced by his referral of his earlier claim. I am satisfied that the events surrounding the May consistory constituted further discrimination against the complainant on the age ground, but he was not victimised in terms of section 74.
5. DECISION
5.1 Based on the foregoing, I find that
(i) the Government Department discriminated against Mr A contrary to the provisions of the Employment Equality Acts 1998 - 2004;
(ii) the Government Department did not victimise Mr A contrary to the provisions of the Acts.
5.2 I hereby order that
(i) the respondent pay the complainant €30,000 in compensation for the effects of the discrimination;
(ii) that the respondent introduce open and transparent record keeping for consistories so that the reasons by which they reach their decisions can be clearly identified.
_____________________
Anne-Marie Lynch
Equality Officer
21 August 2006