PARTIES
Mr R
AND
An Institute of Technology
File reference: EE/2004/210
Date of issue: 21 November 2006
1. DISPUTE
1.1 This dispute concerns a claim by a complainant that he was discriminated against by an Institute of Technology on the ground of age, contrary to the provisions of the Employment Equality Acts 1998 and 2004, when he was unsuccessful in his application for two posts.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 25 August 2004 under the Employment Equality Acts 1998 and 2004. In accordance with her powers under section 75 of the Acts, the Director then delegated the case on 1 July 2005 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought from the parties, and a joint hearing was held on 3 August 2006. Subsequent correspondence concluded on 18 August 2006.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant, currently employed as Professor of Accountancy in an African university, applied for two posts advertised by the respondent in April 2004, being posts of Senior Lecturer 1 (Life Long Learning) ("LLL") and Senior Lecturer 1 (Teaching & Learning) ("T&L"). By letter of 18 May, the complainant was invited to attend for interview. The letter was headed
Re: B107 - SL1 (T) Life Long Learning
B113 - SL1 (T) Teaching & Learning
The complainant was asked to prepare a five-minute presentation on either his plan to develop Life Long Learning or his plan to develop Teaching & Learning. On 2 June, the complainant attended for the scheduled interview. He says he was surprised to be interviewed only once, as he contends the two posts are quite different in nature.
2.2 The complainant says he received two letters from the respondent dated 30 June, indicating that he had been unsuccessful in his applications for both posts. The complainant subsequently sought feedback on his performance at interview, and was provided with a copy of an assessment form, scoring him under several criteria. The form had LLL inscribed in the corner, and so he took it to be an assessment of his performance in connection with the LLL post. By email of 20 July, the complainant sought feedback on his performance in connection with the T&L post. He was advised by Human Resources (HR) on 20 August that the Selection Board had confirmed that the assessment sheet already supplied was a summary in respect of his performance for each of the posts. HR said he had been interviewed for both posts and assessed for both posts.
2.3 The complainant says that the assessment form indicates that he got the identical score for both posts (57.5 out of a possible 100). He submits that, statistically, the chance of one applicant getting identical scores for two different posts by random is millions to one. He says further that the questioning at the interview, and the comments on the assessment form, related almost exclusively to the LLL post. The complainant says that, generally speaking, the comments on the form were couched in a negative style, which suggests to him that the approach of the interview board was to find opportunities whether legitimate or otherwise to downgrade both his career to date and his performance at interview.
2.4 The complainant takes exception to several of the comments on the form, which is reproduced here:
Area to be assessed | Weighting | Score (1-10) | Candidate Score (weighting x score) | Supporting Comments |
1. Relevant Educational qualifications (above the minimum) | 1 | 7 | 7 | Professional + several masters but never reached PhD? |
2. Relevant Work Experience (a) Teaching (b) Industry/Business/ Public Sector (c) Specialised listed areas | 1 1 1 | 10 7 4 | 10 7 4 | Excellent teaching. Good business if a little while ago. |
3. Communication/Leadership Skills (a) Interview (b) Presentation | 1.5 .5 | 5 6 | 7.5 3 | Adequate style of communication |
4. Presentation Content & Structure | 5 | 4 | 2 | Presentation had some factual errors, generally OK |
5. Professional Expertise and Knowledge | 1 | 5 | 5 | Did not demonstrate knowledge of current IT sector developments |
6. Innovation/Ideas/Attitude to Change and Development | 1 | 5 | 5 | Did not demonstrate knowledge of current IT sector developments |
7. Motivation for/Interest in Job | 1 | 5 | 5 | Motivated but not supported by knowledge of background |
8. Knowledge of IT Sector/IT [Respondent]/Function/School | 5 | 4 | 2 | Limited |
Total | 100 | 575 |
2.5 Regarding his educational qualifications, the complainant points out that a PhD was not a requirement of the job specifications. He says that his understanding of "not to reach" something suggests it was a goal at some time. He says he concentrated on gaining his three Masters degrees, which he says were not adequately taken into account. He points out that he has an MSc in Life Long Learning, and an MEd in training and development which was clearly ignored when considering him for the T&L post. He says further that he holds an MBA with first class honours and an LLM in commercial law. The complainant says he believes all of these achievements have been virtually ignored by the assessment feedback.
2.6 The complainant says that, except for his teaching, his other experience has not been given full credit. He says the Selection Board failed to look at either the information he provided on his CV or the statements he made at the interview about his extensive consultancy experience. He says he has been involved in consultancy for almost 20 years and that these significant and high-level experiences were not taken into account. He says the panel failed to take into account that he was for some time Director of Continuing Education at an Irish university, and initiated an evening BBS degree at that institution. He says that during his period in Africa (1987 to date) he has been involved in developing new adult education (LLL) courses. He points out that the comment in relation to specialised areas has nothing to do with the T&L post, and says it begs human credibility how a score was computed when no data was taken into account. He says the only conclusion one can reach is that the assessment was prejudiced on the basis of age.
2.7 The complainant rejects the assessment that his style of communication was "adequate". He says he has been teaching for almost 30 years, 12 of those at professorial level. He says his teaching has consistently been rated highly. He suggests that even more pertinent is the fact that he knows at this stage how to assess his own performance, and he says he considers he gave a very good performance on the day of the interview.
2.8 Regarding the comment on his professional expertise and knowledge, the complainant says this presumably refers to the LLL post. He submits that it is difficult to know what "possibly out of context" means. He wonders if it means there are special circumstances pertaining to the respondent institute which are unique and that only someone working in the environment could possibly cope. He says that if this is the interpretation, it exhibits a very narrow view of what education is about.
2.9 The complainant notes that the assessment form commented that he "did not demonstrate knowledge of current IT [Institute of Technology] sector developments". He questions whether this is a fair comment. He says that the week after the interview with the respondent he attended an interview at another educational institution and was commended by the panel on his innovations. He says that not only does he have innovative ideas, he is able to implement them. He says that if the Selection Board was interested, it would have found the information on his CV.
2.10 The complainant firmly disputes that he lacks knowledge of the background of the posts. He says he incorporated the findings of the White Paper on adult education into his presentation, as well as including information from the respondent's strategic plan and web site. He submits that it is clear that a lot of information was ignored in drafting the comments and making up the scores.
2.11 The complainant concludes that he has clearly demonstrated res ipsa loquitur that bias and prejudice are the principal skills demonstrated in structuring one interview for two posts, purporting to claim that the score of the LLL post is a true and valid score for the T&L post and then furnishing comments which cannot refer to both posts. He claims this was done because of age discrimination. He submits that the respondent has stooped so low with its negative comments to support its scores, that it has tarnished the reputation of a successful academic who has rendered excellent service both in Ireland and internationally.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent says that a unique situation arose at the Institute in April 2004 in that two senior posts became vacant. This was taken as an opportunity to develop the area of life long learning, formerly known as adult education. The respondent says it recognised there was also a need to develop the teaching and learning skills of its academic staff, and it therefore advertised the T&L post. The posts were seen as mutually supportive, and it was decided to hold one set of interviews.
3.2 The respondent says that 29 applications were received for the LLL post and 28 for the T&L post. Five individuals, including the complainant, applied for both posts. A shortlisting exercise was carried out by the Head of School, taking into account the qualifications and experience of the applicants. 12 applicants were shortlisted for the LLL post and six for the T&L post. The complainant was the highest ranked candidate on both shortlists. The respondent says that the complainant had qualified as an accountant in 1973 and was therefore clearly in his mid-50s. It submits that if age were the reason for not appointing him to the position, then it would be inconsistent to list him as the top ranked candidate.
3.3 The respondent provided the following comparison of the assessments of the complainant and the successful candidate for the LLL post:
Area to be assessed | Complainant Score | Complainant Comment | Successful Candidate Score | Successful Candidate Comment |
1. Relevant Educational qualifications (above the minimum) | 7 | Professional + several masters but never reached PhD? | 7 | Above minimum qualification with PhD pending |
2. Relevant Work Experience (a) Teaching (b) Industry/Business/ Public Sector (c) Specialised listed areas | 10 7 4 | Excellent teaching. Good business if a little while ago. | 7 4 7 | Good teaching experience. Limited business experience. Identified and delivered LLL |
3. Communication/Leadership Skills (a) Interview (b) Presentation | 7.5 3 | Adequate style of communication | 13.5 3.5 | Excellent communication style - articulate, clear and reflective |
4. Presentation Content & Structure | 2 | Presentation had some factual errors, generally OK | 4 | Good, well focussed content |
5. Professional Expertise and Knowledge | 5 | Solid theoretical but possibly out of context | 8 | Very good experience in LLL |
6. Innovation/Ideas/Attitude to Change and Development | 5 | Did not demonstrate knowledge of current IT sector developments | 8 | Demonstrated by example - high competence here |
7. Motivation for/Interest in Job | 5 | Motivated but not supported by knowledge of background | 8.5 | Had very detailed knowledge of background to job |
8. Knowledge of IT Sector/IT [Respondent]/Function/School | 2 | Limited | 3.5 | Had obviously researched IT sector |
Total Score | 57.5 | 74 |
3.4 The respondent says that three other applicants were placed on a panel for the LLL post following the interviews, with the complainant being ranked sixth but not placed on the panel. The respondent points out that the complainant scored more highly under the first three criteria - education, teaching and industry/business/public sector experience - but did not demonstrate the same level of knowledge of LLL and the IT sector as the successful candidate or the other panelled candidates. It says this was the reason the complainant did not get the post. The respondent submits that age had nothing whatever to do with any of the criteria used to evaluate candidates at interview or with the scoring of the candidates under any of the criteria.
3.5 The respondent says the situation regarding the T&L post was different. It says the complainant had taken LLL as the theme of his presentation, that his responses at the interview focussed on the area of LLL and that he said could do both "but where I am now is life long learning" when asked which post he would prefer. Accordingly, the respondent says the complainant was regarded by the Selection Board as having opted for the LLL post and he was therefore not scored for the T&L post.
3.6 The respondent apologises for the confusion caused by the fact that the complainant received letters saying he had not been selected by the Selection Board for both posts. It says the Selection Board returned its conclusions to HR and unpanelled candidates were automatically sent letters indicating they had been unsuccessful, whereas the complainant had not in fact been scored for the T&L post. The respondent says that two other candidates, who had applied for both posts, were only scored for one because they made it quite clear at interview that they were only interested in one. A further two candidates told the Selection Board that they were still interested in both posts, and so were scored for both.
3.7 The respondent also apologises for the misleading response of HR to the complainant's request for feedback in respect of the T&L post. The respondent says the difficulty arose because the request had been received in HR during July, when the HR Manager was on leave, and she was eager to provide a speedy response on her return in August. A member of staff in HR contacted a member of the Selection Board, and was given to understand that the complainant's assessment sheet related to both posts. The mistake was not realised until the Selection Board re-convened in September 2005 to formulate the response to the complainant's complaint.
3.8 The respondent says that the successful candidate for the T&L post commenced his employment in 1969, while the complainant commenced his employment in 1965. Therefore, the respondent suggests that there could not be much difference in their ages, both being in their 50s at the time of the interviews. The respondent submits that this is a clear demonstration that the Selection Board did not regard age as relevant in assessing candidates.
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-
...(a) access to employment...
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 It should be noted that the complainant contended, at the hearing of the complaint, that the Selection Board was not competent to determine the filling of posts such as the posts at issue here. I am unable to accept this contention, which is of course merely the complainant's personal opinion. The members of the Selection Board appear to be eminently qualified professionals. In any case, it is a matter for the respondent to select the people it considers most suitable. The complainant also clearly stated that his qualifications were such that he should have been offered one of the posts. While I have no doubt of his sincerity in this belief, it remains his subjective opinion.
4.5 Equality Officers and the Labour Court have pointed out on several occasions that it is not their role to carry out a further assessment of interview candidates. In the case Director of Public Prosecutions and Robert Sheehan (Determination No 0416), the Labour Court said "...the responsibility for assessing the merits of the candidates for the disputed post was deputed to a selection board consisting of members whose qualification for the task assigned to them is beyond question. In these circumstances and in the absence of unfairness in the selection process or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the selection board."
4.6 The respondent provided copies of the shortlists drawn up by the Head of School, and I note that the complainant appears at the top of both lists based on his qualifications and experience. With regard to the LLL post, I note also that the Selection Board awarded him higher marks than the successful candidate for his undoubtedly extensive teaching and industry/business/public sector experience, and equal marks for his educational qualifications (see 3.3 above). The successful candidate was awarded higher marks in all other areas, supported by the formal written comments of the Selection Board. I do not find that there was either unfairness in the selection process or manifest irrationality in the result, and I therefore find that the complainant was not discriminated against on the age ground when he was unsuccessful in his application for the LLL post.
4.7 With regard to the T&L post, it is clear that the complainant was misled by the HR Manager's statement that he had been assessed for the post. At the hearing of the complaint, the HR Manager personally apologised to the complainant. I am satisfied on the evidence that a genuine mistake was made without malicious motivation.
4.8 The respondent provided copies of the interview notes for all of the candidates who applied for both posts, from which it is clear that each of the five was asked to state his or her preference. The complainant's response to the question is noted in the interview notes as "Could do both - but where I am now is LLL". Another candidate is noted as saying he "couldn't get his head round" the LLL post, and he was only scored for the T&L post. The successful candidate for the T&L post is noted as saying that "teaching and learning is his field" and he also was only scored for that post. Two further candidates are clearly noted as having stated they were interested in both posts. In the circumstances, I am satisfied that the Selection Board clearly, if mistakenly, understood the complainant to have opted for the LLL post. Taking into account also the fact that the successful candidate for the T&L post was in his mid-50s, I find that the complainant was not discriminated against on the age ground when he was not scored for the T&L post.
4.9 In the Sheehan case, cited at 4.5 above, the Labour Court said that it regarded "the failure of the [Interview] Board to retain contemporaneous notes at interview as regrettable. This is a practice which has been adversely commented upon by the Court on many occasions and it can operate to the detriment of a respondent where it deprives the Court of the opportunity to adequately assess the basis on which the impugned decision was reached." I wish to acknowledge that the respondent in this complaint maintained detailed and comprehensive documentation which was of great assistance in investigating this complaint.
5. DECISION
5.1 Based on the foregoing, I find that the respondent did not discriminate against the complainant on the age ground, contrary to the provisions of the Employment Equality Acts 1998 and 2004.
_____________________
Anne-Marie Lynch
Equality Officer
21 November 2006