Michael Wade
-v-
Waterford County Fire Service
1. CLAIM
1.1 The case concerns a claim by Michael Wade that Waterford County Fire Service discriminated against him on the age ground in terms of section 6(2)(f) of the Employment Equality Act 1998 in contravention of section 8 of the Act in relation to access to employment and training for that employment.
2. BACKGROUND
2.1 The complainant submits that he was discriminated against by the respondent with regard to a vacancy for retained fire-fighter. He submits that he was successful at interview and was placed number one on the selection panel. He subsequently was not successful in either of the two breathing apparatus courses which he attended and his employment was not proceeded with. He claims that he was the oldest person on both breathing apparatus courses and that he was discriminated against on the age ground. The respondent rejects the complainant's claim of discrimination and submits that the decision not to proceed with the offer of employment was based solely on competence.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 12 July 2004. On 10 February 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. A submission was received from the complainant on 7 March 2006. A written submission from the respondent was received on 27 April 2006. A hearing of the claim was held on 18 September 2006.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant submits that he was discriminated against by the respondent with regard to a vacancy for retained fire-fighter. He submits that he was successful at interview and was placed number one on the selection panel. He submits that he did six weeks full time training spread over a fourteen month period and that he also did a small amount of training on his own time with the local Portlaw Fire Service.
3.2 He submits that the Assistant Chief Fire Officer [Mr. A] seemed to make things as difficult as he could when dealing with the complainant. He believes that he was discriminated against because of his age and was discriminated against in relation to access to employment and conditions of employment. He submits that he received improper training and preparation between breathing apparatus courses. He was the oldest trainee on both breathing apparatus courses and the only one not passed. Both breathing apparatus courses had different marking and selection procedures. He submits that a younger fire fighter was taken on in Dunmore East fire service in February 2003 with only two weeks training completed and no breathing apparatus course completed.
3.3 He submits that he did the interview in November 2002 at Portlaw Library and on 9 December 2002, he received a letter informing him that he had been successful at the interview and placed number one on the selection panel. On 10 January 2003, he submits that he did a pre-employment medical in Waterford. He did two weeks recruit training at Clonmel Fire Station from 20 January 2003 to 31 January 2003. He did the first breathing apparatus course at Athlone Fire Station from 8 September 2003 to 19 September 2003.
3.4 He submits that in late September 2003, he had a meeting with the Assistant Chief Fire Officer [Mr. A] who informed him that he had not passed the course. He was not given any documentation explaining the situation and was offered a second course in the future. He was also told that he could train on his own time with the local Portlaw Fire Service. The Officer in Charge of Portlaw Fire Service was present at the meeting.
3.5 In October 2003, one employee retired from Portlaw Fire Service reducing the team to six people. In January 2004, the complainant was offered the breathing apparatus course at seven days notice by the Officer in Charge at Portlaw. The complainant had already made arrangements to fly to England with his family and he informed the Officer in question.
3.6 In May 2004, the complainant met the Assistant Chief Fire Officer [Mr. A] to collect the breathing apparatus for going on the second breathing apparatus course. He informed the complainant that he did not like his choice of accommodation in Athlone. The complainant informed him that he stayed there the previous time and that it was good accommodation and submits that Mr. A did not like the complainant standing up to him.
3.7 The complainant submits that he completed the second breathing apparatus course at Athlone Fire Station from 24 May 2004 to 4 June 2004. On 16 June 2004, the complainant met with the Assistant Chief Fire Officer [Mr. A] and the Officer in Charge. Mr. A informed him that he had not passed the breathing apparatus course and that there would be no job available for him in Portlaw Fire Station. The complainant asked for something in writing and a few days later received a letter with very limited detail in it.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The complainant alleges that he was discriminated against on the age ground in relation to access to employment as a retained fire-fighter which was not proceeded with as he had not successfully completed either of two breathing apparatus courses. It is the respondent's position that the alleged discrimination did not take place and the complainant's employment was not proceeded with solely on the grounds of competence. This competence was determined in the course of two separate examinations in relation to the use of breathing apparatus. This was confirmed to the complainant in writing by letter dated 12 August 2004.
4.2 The respondent submits that the complainant has to furnish evidence in respect of his claim of discrimination on the grounds of age in terms of the nature or extent of any discrimination other than the fact that he did not successfully complete the course on two occasions and he believes that he was the eldest candidate.
4.3 The complainant applied for and successfully completed an interview for the position of retained Fire-fighter with Portlaw fire brigade. His employment was conditional on undergoing and successful completion of a number of training programmes as required by the service. In September 2003, he attended the breathing apparatus wearer's course in Athlone. The course was attended by 13 recruit fire-fighters. Of the 13 recruits, the complainant had the lowest score and failed to successfully complete the course having failed to achieve the necessary qualifying mark. As he had failed to complete an essential training programme, the Assistant Chief Fire Officer advised him that he would have to undergo and complete the course for a second time if he was to be considered for employment.
4.4 Arrangements were made for the complainant to attend a second breathing apparatus course in Athlone from 24 May to 4 June 2004. However, the complainant again failed to successfully complete the course. As a result of the second failure, the respondent wrote to the complainant on 12 August 2004 advising him that as he had failed to satisfactorily complete the breathing apparatus course on a second occasion, his employment would not be proceeded with. The respondent accepts that the complainant was the oldest candidate on both courses; however, the respondent denies that the failure of the complainant to successfully complete the course on either occasion was in any way related to his age.
4.5 The respondent did not ask candidates to state their ages on their applications and the respondent did not provide any information in relation to the complainant's age to those responsible for the operation of the assessment of the breathing apparatus course.
Therefore, the age of the candidates was not considered as a criterion for an offer of employment or the continuation of that employment.
4.6 The complainant was provided with the same opportunities in relation to training as is provided to all prospective candidates for the retained fire service. In the complainant's case, he was assisted with additional training to enable him to undergo and successfully complete a second breathing apparatus course. The Assistant Chief Fire Officer [Mr. A] advised the complainant following the first course of the areas of his performance which required attention and the complainant was aware that he could contact the Station Officer in Portlaw with regard to additional training. There was a nine month interval between the two breathing apparatus courses and the complainant did not prior to taking the second breathing apparatus course contact the respondent to complain of the level of training available to him or indeed seek additional training.
4.7 The failure of the complainant on both courses related solely to his competence and not his age. Students undertaking the Breathing Apparatus course undergo a theory test and a practical test, both of which are pass or fail. In addition all students are subjected to continual assessment during the practical wearing sessions. Of the three examinations, the continual assessment is the most important as it is a measure of the wearer's ability to operate in a dangerous environment. The complainant has not specified how the assessment process at either of the breathing apparatus courses was in any way discriminatory towards him. Each training course is operated to strict guidelines with a minimum of one instructor assessor for each of three candidates. All of the instructors/assessors are experienced senior officers. Each candidate is assessed on a daily basis and at the end of the first week; candidates are advised of their progress and any areas at which improvement may be required.
4.8 The respondent accepts that Mr. A against whom the complainant has made general allegations was an instructor/assessor on the first course attended by the complainant; however, the respondent does not accept that Mr. A discriminated against the complainant in any way. Mr. A would have been one of four assessors and the decision that the complainant was not competent was a unanimous one by all assessors. In addition, the same group of assessors previously declared that a candidate older than the complainant was competent. On the second course, the assessors did not include any employee of the respondent and the decision in respect of the second course was also unanimous. On the second course, a fire-fighter who was younger than the complainant failed to successfully complete the course. The fire-fighter in question subsequently underwent a second breathing apparatus course and is currently employed as a fire-fighter.
4.9 The instruction and assessment at breathing apparatus courses is carried out by senior fire officers. They will agree in advance the marking and selection procedures to be utilised on each training course. The marking scheme on each course whilst not exactly the same is consistent in terms of the specific competencies required. However, the marking procedures on each of the courses were consistent for all of the candidates on those specific courses and they did not in any way discriminate against the complainant on the age ground.
4.10 The respondent accepts that a younger fire-fighter was taken on in Dunmore East station in February 2003 with only two weeks training completed and no breathing apparatus course completed. An examination of recruitment to the fire services in Waterford since 1997 shows that this occurred in a minority of cases. Each retained fire service will strive to ensure that it can maintain a minimum crewing level. This means that for operational reasons the fire service may employ fire-fighters before they have completed the breathing apparatus course. In such circumstances, the fire-fighter will not be allowed to engage in operational duties involving the use of breathing apparatus and they must successfully complete the training within a specified period or their employment will be terminated. In the instances of this specific fire-fighter, he was employed in February 2003 and successfully completed his breathing apparatus course in September 2003.
4.11 The respondent is satisfied that the complainant was kept fully informed at all times in relation to the breathing apparatus courses and indeed was assisted by AFCO Mr. A with both advice and the option of additional training in preparation for the second course. The complainant originally underwent a selection process at interview where
he was successful. The respondent did not discriminate against him in terms of his access to employment; however, he was aware that his employment could not be proceeded with until he successfully completed the breathing apparatus course. The decision by the respondent not to proceed with the complainant's employment was based solely on competence.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the age ground in relation to access to employment and training for that employment. I will therefore consider whether the respondent directly discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Act 1998 in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Direct discrimination on the age ground
5.2 Section 6(1) of the Employment Equality Act 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(f) that they are of different ages, ...... (in this Act referred to as "the age ground"),
Caselaw on establishing a prima facie case of direct discrimination
5.3 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the age ground. The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (1) considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.4 Subsequently, the Labour Court stated in relation to the burden of proof in a discriminatory dismissal case on the age ground:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed." (2)
More recently, the Labour Court stated in a case concerning discrimination on the age ground in relation to access to employment:
"It is accepted that if the complainants make out a prima facie case of discrimination, the burden of proving the absence of discrimination shifts to the respondent. The appropriate test for determining if that burden has shifted is that formulated by this Court in Teresa Mitchell v Southern Health Board [2001] ELR 201. This test places the initial burden on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent." (3)
Direct discrimination
5.5 The Labour Court stated in the case of Superquinn -v- Barbara Freeman (4) that "The existence of a difference on the grounds of age, marital status or family status between the two candidates does not of itself establish a prima facie case of discrimination. The difference in age of three years, the complainant being 31 years old and the successful candidate being 28 years old, is not in the Court's view significant enough to establish a presumption of discrimination, in the absence of any other facts. While the application form for the position required the candidates age, which of itself is prohibited by the Employment Equality Act, 1998, no facts were presented by the complainant to substantiate the allegation that the company had treated her less favourably due to her age."
In the case in issue, the respondent accepts that the complainant was the oldest person on both breathing apparatus courses. However, it submits that the failure of the complainant to successfully complete the breathing apparatus course on either occasion was not related to his age but was related to his competence. The respondent provided a copy of the complainant's application form and there was no requirement to state age on the form and there was no indication that it had been recorded by the complainant on the form. The ages of the candidates on the course in 2003 ranged from 19 to 44 and in 2004 ranged from 20 to 44. Whilst it is correct to say that the complainant was the oldest on both courses, I note that a candidate who would have been forty one two months after the course finished in September 2003 achieved a ranking of fifth position out of twelve candidates and was successful on the course. I also note that a candidate who was on the second course with the complainant and who was thirty five years old at the time failed the course but was however successful on a second occasion. I further note that a candidate who was forty years old at the time of the course in June 2004 was successful.
5.6 At the hearing, the respondent clarified that the assessment criteria for the first course were agreed at a pre-course meeting. On the first breathing apparatus course in 2003, the twelve candidates were assessed under the four criteria of Set Wearing, Set Technical/Set Practical, Written Examination and ECO (Entry Control Officer). Assessment in respect of Wearing Sessions (Criterion 1) was carried out under five sub headings which were Search Procedure, Work Rate, Leadership, Composure and Team Spirit. The complainant was ranked number 12 in respect of his mark for the Course and for the Wearing Sessions. One of the assessors who was the Course Director on the first course gave evidence that Set Wearing was the most important element of assessment. The complainant achieved a mark of 43% for Set Wearing and one of the assessors gave evidence at the hearing that 50% was the pass rate. He submitted that the markings were done at a post course meeting at the end of the two week training course. The assessors did not mark individually under each heading but agreed a mark.
5.7 The respondent submits that there was no specific marking scheme in relation to the second Breathing Apparatus course in May/June 2004. It submitted that the candidates were assessed on the basis of a continuous assessment carried out on a daily basis over the period of the Course and it submitted a copy of correspondence in respect of the complainant from the Course Director to the Assistant Chief Fire Officer, Mr. A dated May 2005. The four instructors on that course were from Clonmel, Bray, Cappamore and County Limerick. The Course Director submitted in that letter that they kept a daily log of the performance of each wearer on the course. He submitted that each afternoon, the three instructors sat down with the Course Director and decided on the standard of performance of each Wearer and recorded in writing their impression of the candidate's ability in different areas, e.g. written work, attitude, wearing ability, confidence etc. At the hearing, the Course Director clarified that he made notes at the end of each day in respect of each candidate after consultation with the other assessors.
5.8 The comments in respect of the complainant for the first week state:
"Monday - Poor
Tuesday - No problem going through pipe. Good in classroom with B.A. Board. Poor enough in search procedure.
Wednesday - Very Fair
Thursday - Went well
Friday - Forgot to turn around after finding the casualty. Continued on deeper into the building."
The Course Director submitted that at the end of the first week, the assessors spoke to the students individually in relation to their performance. He submits that they discussed with the complainant his standard over the week and told him that if he could continue to improve he would have no problem in passing the course.
5.9 The Course Director submits that the notes in respect of the complainant on the second week read:
"Monday - When leading a team into the building he got lost, and continued to change walls. He had no idea where he was, and had no plan in his head as to how to rectify the situation.
Tuesday - He was the second person on a 2 man team. He missed all the casualties in the building and appeared to have no grasp of search procedure.
Wednesday - Prior to the first wear on Wednesday 2nd June, the 4 instructors spoke individually to 2 students, one was Mr. Wade. We explained that we felt that they were not reaching the standard, which was required, and we would have to see an improvement before Friday if they were to pass.
We agreed to test the leadership abilities of both men by putting them in the positon of Team Leader. This would test them in the area in which they were lacking.
Wednesday - Disastrous as Team Leader.
2nd Wear - Good as number 2.
Thursday - Did well on the B.A. Control Board.
Good radio procedure."
The respondent submits that the comments were taken directly from the contemporaneous notes which were written at the end of each day. The Course Director further stated that there was a unanimous decision based on the performance of the complainant that he would present a risk to himself, his team members and others if he was passed as a B.A. wearer and that they did not consider him suitable.
5.10 The complainant also submitted that on the first course only three of the trainees on the course weren't in the fire service already. The respondent rejected the complainant's submission and submitted that on the first course, there were three participants from Waterford and only one was already in the employment of the respondent. The respondent submitted that after the complainant was unsuccessful on the first course, the facilities of Portlaw Fire Station, a Station Officer and a BA set were made available to him to do some practice sessions. The complainant accepted that he had availed of the assistance of a qualified BA Set Wearer in his local fire station on two or three occasions for 30/40 minutes on each occasion. In relation to the issue of a younger person being employed in Dunmore East Station without having completed the BA Wearers Course, the Respondent submitted at the hearing that in a minority of cases, to maintain crew levels and for operational reasons such as for road traffic accidents, personnel have on occasion been employed to assist carrying materials. There is then a requirement to successfully complete the BA Wearers Course within a short timeframe or the employment will be terminated. The person referred to by the complainant was employed in February 2003 and successfully completed the course in September 2003.
5.11 The Labour Court has stated:
"...., this Court has consistently stressed that interview boards, both internal and external, should be trained, and apply strict promotion criteria agreed in advance with adequate markings and should keep comprehensive interview notes." (5)
In that case, the Labour Court also stated:
"A failure to keep records of interview process, which of itself may not be discriminatory, when coupled with other factors , may lead a Court to infer that there has been discrimination." (6)
In any assessment process, candidates should be marked according to clearly defined criteria agreed in advance and all notes made should be retained. Whilst the candidates on the first breathing apparatus course were assessed according to clearly defined criteria, that was not the case on the second course. However, I consider that this factor in addition to the fact that the complainant was the oldest person on both courses is insufficient to establish a prima facie case of discrimination on the age ground. The onus does not therefore fall to the respondent to rebut the complainant's claim.
6. DECISION
6.1 On the basis of the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 contrary to section 8 of the Act in relation to appointment to the post of retained fire-fighter and training for that employment.
__________________
Mary Rogerson
Equality Officer
6 October 2006
NOTES
(1) DEE011 15 February 2001
(2) Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003
(3) Portroe Stevedores v. Nevins, Murphy, Flood EDA051 11 February 2005
(4) AEE/02/8 Determination No. 0211
(5) Department of Health & Children v. Gillen EDA0412 27 July 2004
(6) The Department of Health and Children v. John Gillen EDA0412 27 July 2004