DEC-E2006-055 - Full Case Report

Parties

Ms Anne O'Kane
vs
Health Service Executive West

1. DISPUTE

The dispute concerns a complaint that the Health Service Executive West (HSEW) discriminated against the complainant on the age ground contrary to the provisions of the Employment Equality Acts, 1998 and 2004 (referred to here as the Act).

2. BACKGROUND

2.1 The complainant had been employed for thirty four years with the respondent and had successfully competed for promotion over the years. However she was unsuccessful in the most recent promotional competition in May, 2004 and believes that her age was a factor in the interview board's decision.

2.2 The complainant referred a complaint to the Director of the Equality Tribunal on 13th September, 2004. The parties attempted unsuccessfully to resolve the matter at mediation and the complainant requested a resumption of the investigation on 24th March, 2005. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to an Equality Officer, for investigation, hearing and decision on 1st July, 2005 and for the exercise of other relevant functions of the Director under Part VII of the Act. The Equality Officer to whom the complaint had been delegated requested, for personal reasons, that the complaint be delegated to another Equality Officer and the Director delegated the complaint to Raymund Walsh on 1st February, 2006. A hearing of the complaint was held on 12th May, 2006. Arising from the hearing additional material was provided by the respondent and further correspondence ensued up until 5th July, 2006.

3. SUMMARY OF THE CLAIMANT'S CASE

3.1 The complainant was serving in the Births, Deaths and Marriages (BDM) department of the HSEW at Grade V level in 2004, when as a result of IMPACT negotiations at regional and national levels concerning staffing levels of BDM departments, an upgraded post at Grade VI level was created. IMPACT argues that the complainant had effectively carried out the higher level duties for the previous four years however when a competition to fill the upgraded post was held, a candidate ten to twelve years her younger, with significantly less experience in the area, was successful. In support of its argument that the new post was in effect the complainant's existing post, IMPACT states that the complainant was required to move to another position to facilitate the appointment of the successful candidate. Two other candidates placed on a panel were also younger than the complainant while the remaining unsuccessful candidate was of a similar age. IMPACT states that the complainant was the only serving candidate in an upgraded post not to be appointed and states that at a training course prior to the competition candidates were told that 70% of marks would be based on appearance, a remark which IMPACT considers to be inherently ageist. IMPACT argues that management had stressed the need for candidates to be competent on the new computer system in the BDM department and that the complainant had more experience in this regard than the appointee. IMPACT states that it requested interview notes from the respondent but that none were provided and refers to the Labour Court in John Gillen and the Department of Health and Children (27 November, 2004, Determination 0412) in this regard. IMPACT refers also to the Labour Court in Monaghan VEC and Carroll (22 November, 2004, Determination 0415) regarding the need for a transparent and objective system of marking.

4. SUMMARY OF RESPONDENT'S CASE

4.1 The respondent states that seven candidates were interviewed for the disputed post and that four candidates reached the qualifying mark of 320 and were placed on a panel. The respondent gives the ages of the seven candidates and their marks at in interview in place order as follows:

A further breakdown of the marks under five criteria used by the interview board was also provided. The respondent states that there is no evidence of age bias in the allocation of marks and placing of candidates at interview and states that objective criteria were used in the selection of candidates. The respondent rejects the union argument that the complainant had significantly greater experience than the successful candidate (i.e. first on the panel) and states that while the complainant had two more years experience in the BDM department than the appointee, the appointee had five additional years of management experience in other departments.

4.2 In relation to the marks awarded to candidates at interview the respondent states that under the heading of qualifications and experience, the appointee received 42 marks as against the complainant's 41 marks and argues that these marks would not support an allegation of age bias. The respondent states that the complainant did not perform as well under the four other criteria i.e. professional knowledge, organizational experience, special aptitudes and special circumstances and that the interview panel were agreed that the complainant did not demonstrate a thorough knowledge or understanding of the post. Regarding advice given on the interview preparation course, the respondent states that candidates were told in relation to 'presentation' that first impressions were important and of the need to be physically and mentally prepared for interview but that at no point were they told that 70% of marks would be awarded for presentation. The respondent rejects the union suggestion that the post in question was simply an upgrading of the job that the complainant had been doing in the BDM department at Grade V level since January, 2000 and outlined the background to the creation of a new post arising from a nationwide review of the Civil Registration of Births, Deaths and Marriages known as the Doran, Mc Hugh report published in January, 2003, a copy of which was included in its submission. The respondent states that the only information retained by the interview board was the marks awarded to candidates and the list of questions asked at interview. It was not normal practice at the time to retain interview notes and none were retained however interview notes are now retained in line with best practice in the public service.

5. CONCLUSIONS OF THE EQUALITY OFFICER

5.1 In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. In considering whether the complainant has adduced evidence from which a presumption of discriminatory treatment arises, I am of the view that the age profile of the candidates, when placed in the order of marks awarded at interview (paragraph 4.1 above), does not in itself support an allegation of a general age bias in the competition. I note that IMPACT states that three of the candidates were deemed suitable and that all three were in excess of ten to twelve years younger than her. The respondent however has outlined in its submission that four candidates reached a qualifying mark of 320 and that the candidate placed third was one year younger than the complainant (this information would not have been available to IMAPCT when preparing its submission). However the complainant is fourteen years older than the candidate placed first on the panel i.e. the only candidate to be appointed and I am satisfied that a significant age difference has been established between the complainant and the most relevant comparator. An age difference in itself is not prima facie evidence of discrimination however coupled with the facts that the complainant had four years relevant experience in the BDM area and that the respondent has not retained any notes of the complainant's interview or the basis on which she was awarded lower marks than the younger appointee I consider that the complainant has adduced sufficient evidence on which a presumption of discriminatory treatment can be based and that it is for the respondent to prove the contrary.

5.2 The Labour Court has frequently cautioned against placing itself in the place of a selection board but stressed the need for objectivity and transparency in the selection process. In the present case I note that while no interview notes were retained, the respondent furnished the detailed marks awarded to each candidate suggesting that the complainant did not perform as well as the appointee under a number of headings. While supporting notes would have added transparency to the marks, the three interview board members were present at the hearing and answered questions regarding the performance of candidates at interview. Evidence was given of the 'person specification' for the post, criteria on which candidates would be assessed and the marks attainable under each heading and a list of questions to be put to candidates. Their evidence was that the higher marks awarded to the successful candidate arose from her demonstrated knowledge and performance at interview and they strenuously denied that they were influenced by the complainant's age. IMPACT bases its case largely on the fact that the complainant had four years experience in the BDM department and argues that this was not reflected in the interview marks. I note however that while the successful candidate had only two years BDM experience she had a total of 8½ years service between the Assistant Staff Officer and Staff Officer Grades (i.e. management experience) as against the complainant's 4 years service in management grades. Evidence was given that the successful candidate holds certificates in Payroll Practice and Supervisory Management while the complainant holds a diploma in Keyboard Skills and a Medical Secretary certificate. The appointee was awarded 42 marks for qualifications and experience as against the complainant's 41. The successful candidate was also awarded higher marks in relation to organizational knowledge, professional knowledge and special aptitudes. The interview board gave the example of knowledge of the new computer system and stated that, unlike the successful candidate, the complainant showed a poor knowledge of the role it would play in monitoring and control of finance and was marked accordingly. The interview board also stated that the complainant's answers regarding the re-organisation of the registration service, the impact of the new marriage legislation and the proposed IT system were consistently poor and weak, in spite of her existing role and experience within the service.

5.3 Having regard to the appointee's longer service in the higher management grades, coupled with the interview board's evidence in relation to the complainant's performance at interview, I must conclude that on the balance of probability that the interview board had objective reasons unconnected with the complainant's age in deciding to appoint the younger candidate and that it has discharged the burden of proof in this case. I note that the respondent has amended its policy in relation to the retention of interview notes and that interview notes are retained in line with the Labour Court's stated views on best practice in this regard.

6. DECISION

6.1 On the basis of the foregoing, I find that the respondent did not discriminate against the complainant in terms of Section 6(2) and contrary to the provisions of Section 8 of the Employment Equality Acts, 1998 and 2004.

Raymund Walsh
Equality Officer
13 November, 2006