DEC-E2007-043 - Full Case Report

O'Higgins

AND

Department of the Environment, Heritage and Local Government

1. DISPUTE

1.1 This dispute concerns a claim by Mr Denis O'Higgins that he was discriminated against by the Department of the Environment, Heritage and Local Government on the ground of age, contrary to the provisions of the Employment Equality Acts 1998 to 2007, when he was subjected to workplace bullying and given a negative promotion report.

1.2 The complainant referred a claim to the Director of the Equality Tribunal on 18 August 2004 under the Employment Equality Acts 1998 and 2004. Following an unsuccessful mediation process, and in accordance with her powers under section 75 of the Acts, the Director then delegated the case on 28 October 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 hearing was held on 23 March 2007. Subsequent correspondence with the parties concluded on 3 May 2007.

2. SUMMARY OF THE COMPLAINANT'S CASE

2.1 The complainant, who was born on 4 August 1949, has been employed as a Conservation Ranger with the National Parks and Wildlife Service (NPWS) since 1980. The NPWS was under the aegis of the Department of Arts, Heritage, Gaeltacht and the Islands up to June 2002, following which responsibility for the Service transferred to the Department of the Environment, Heritage and Local Government.

2.2 The complainant says that, in June 2002, he was summoned by his management to attend a meeting in a hotel, to discuss what were described as "outstanding issues". The complainant says that he presumed that one of the issues to be discussed was outstanding travel and subsistence claims due to him, but instead he was harassed and ambushed. He says he was taken to the basement of the hotel and confronted by four superiors. He says the ensuing meeting was forced and hostile, and as he was without an agenda he lacked documentation to rebut accusations made, many of which were malicious and all of which were untrue. The complainant says he was left frightened and humiliated by the meeting.

2.3 The complainant says that he subsequently discovered, through a Freedom of Information (FoI) request, that the meeting was planned as a disciplinary meeting. He says that he wrote to his line manager and to Personnel objecting to his "obnoxious and damaging treatment" and asking that the event be investigated through a sworn enquiry under the Bullying Code. The complainant says that his complaint was not acknowledged except for counter-allegations made against him by his line manager. He says that the legal duty of care owing to him was denied and flouted by the four superiors involved and by those in Personnel who were aware of the forthcoming meeting. He asserts that the official code was breached and his rights as a citizen were trampled upon.

2.4 The complainant claims that two of the four superiors subsequently discriminated against him in relation to an assessment for promotion to District Conservation Officer (DCO) in 2004. He says that the interview was scheduled for Monday 24 February, and on Thursday 19 (one working day beforehand) he was absent from home. He says that an assessment of his suitability was faxed to his private fax in the private area of his home, and when he returned home he found the document openly displayed for all to read. He says the document, signed by his first supervisor (DCO) and by his second supervisor (the Regional Manager), purported to be an assessment for his suitability for promotion. He describes it as "false, degrading and devoid of any positive content", and says it was totally at variance with his most recent assessment by the DCO.

2.5 The complainant says that, when completing their "so-called assessment", his two supervisors placed him in the least favourable position in all categories, and the "No" option appeared like a mantra on the first page. Under Any additional comments they stated "As [the complainant] has not had a single case in Court in his entire service (24 years) I think his ability to advise and supervise staff would be found wanting." The complainant says this false and vexatious statement emphasised his years of service thereby highlighting his age. He asserts that the assessment sets out to impugn him as a person, demean and destroy him and exhibits a total absence of any positive attributes of the many he possesses.

2.6 The complainant says the assessment was dispatched at short notice before the interview, ensuring he was denied the right of reply and rebuttal of its false and misleading contents. He says that during the one day available to him (Friday 20 February) he appealed to Personnel by telephone and fax requesting that this misleading document be withdrawn from the interview board. He says that Personnel's response was that it was prohibited from doing so and that the lack of an assessment would beget its own problems. The complainant says the assessment influenced the interview panel to his disadvantage, and that the Chair confirmed at the interview that she had already read the assessment.

2.7 The complainant says further that, only weeks before the interviews, a reduction of the service requirement from five years to three years was imposed. He says that procedures were not introduced to take account of the rolling effect on long serving candidates, and no provision was made to ensure equality whereby the older displaced candidates could aspire to their promotions. He claims that the obvious solution would have been to offer extra DCO positions to ensure age equality through a percentage method on a once-off basis, relative to the number of additional candidates enabled to compete because of the instant two year service reduction imposed.

2.8 The complainant says the age categories of applicants for DCO were as follows:

He points out that the last three categories, all older than 50 years, were the only categories in which there was 100% failure rate, whereas the other categories all enjoyed a success rate of 50% and over.

3. SUMMARY OF THE RESPONDENT'S CASE

3.1 The respondent says it firmly denies the complainant's claim of discrimination, and that it is fully aware of its obligations under equality legislation and constantly reviews policies and procedures to ensure ongoing compliance. In explanation of the structure of the NPWS, the respondent says the complainant's grade, Conservation Ranger, reports to a District Conservation Officer (DCO). S/he in turn reports to a Regional Manager, who reports to a Divisional Manager.

3.2 The respondent says that in 2002 a meeting was arranged to discuss ongoing work-related problems with the complainant. The DCO and Regional Manager felt it necessary to involve the Divisional Manager as attempts to resolve the issues at local level had failed. The Divisional Manager invited the complainant to the meeting by email dated 7 June, which said "Management is requesting your attendance at this meeting to discuss aspects of your work. Notice is being given to permit you to arrange the attendance of a representative of your union or a legal representative...If you wish for a short deferral to arrange for the sort of representation mentioned above...please let me know."

3.3 In attendance on the day of the meeting were the complainant, the DCO, the Regional Manager, the Divisional Manager and a Higher Executive Officer from the Department's head office, who took notes but otherwise played no part in events. The respondent acknowledges that the Divisional Manager incorrectly referred to the meeting as a disciplinary meeting on the day, and it says that all parties were subsequently informed by the Personnel Officer that it would not be considered as such within the terms of the disciplinary code. The respondent points out that the complainant had been offered an opportunity before the meeting to defer it, but he chose to attend unaccompanied. It says the deferral offer was repeated before the meeting started and again during the meeting, and that he chose to proceed.

3.4 The respondent claims that, with the exception of the complainant, all participants at the meeting considered that it was undertaken in a professional and cordial manner. It says that, while it was not a disciplinary meeting, certain unsatisfactory aspects of the complainant's performance were brought to his attention, and these matters continued to be under review.

3.5 The respondent says that the complainant emailed the DCO on 2 July in the following terms "As you will appreciate I remain traumatised due to the ferocity, overpowering, intense and four-to-one hostile experience I was subjected to on Friday last. A medical certificate from [a GP] will follow when my energy recovers somewhat. I am now asking that you set in train a sworn enquiry to investigate all aspects of this ongoing vendetta perpetrated against me, to include the meeting which took place on Friday, 28 June 2002, under the bullying code." The respondent says this email was forwarded to the Personnel Officer in the Department of Community, Rural and Gaeltacht Affairs (which had subsumed many of the functions of the Department of Arts, Heritage, Gaeltacht and the Islands).

3.6 The respondent says that the Personnel Officer wrote to the complainant on 16 July enclosing a copy of the Civil Service Code on Bullying, Harassment and Sexual Harassment, and advising that for an official investigation to be initiated he should submit exact details of the complaint, including times, dates and witnesses. She also pointed out that responsibility for his personnel issues now rested with the Department of the Environment, Heritage and Local Government and that further correspondence should be addressed to that Department. The complainant responded to the Personnel Officer on 18 July, repeating his assertion that he had been traumatised by the meeting and indicating that he intended to pursue an investigation. The Personnel Officer acknowledged his letter on 25 July, and repeated her statement that she was no longer in a position to deal with the matter. The respondent says that the Personnel Officer in the Department of the Environment, Heritage and Local Government reiterated the steps to be taken in a letter to the complainant in May 2003, but that the complainant did not pursue the matter.

3.7 Regarding the DCO promotions in 2004, the respondent says its policy in relation to assessments is that they must be seen and signed by candidates in advance of an interview. It says the complainant's DCO was first supervisor for two candidates in the competition, and he forwarded both assessments to the Regional Manager on 11 February. The Regional Manager was second supervisor for nine candidates in total, and he concluded his evaluations on 19 February. The respondent says that, with the tight timeframe, the only way the assessment could be seen by the complainant in advance was by faxing the documents. The respondent says this is a fairly routine method of communication between line managers and their staff working in the "field".

3.8 The respondent says the complainant receives an "office accommodation allowance", which is paid to staff providing office accommodation in their own homes. There are two rates of allowance paid, depending on the type of accommodation provided. The respondent says the complainant is paid the higher of the two rates, which requires the provision of a separate room as an office to accommodate two people, and which must be open to the public at specified times and be available for meetings.

3.9 The respondent says it pays the telephone bill and line rental charges and recoups payment for private calls in respect of the complainant's telephone. The respondent says the Regional Manager had no reason to believe that the fax machine would be in the private area of the complainant's home. It says that official documents had been sent to and received from this fax on other occasions and the complainant had never indicated that it caused problems.

3.10 With reference to the assessment itself, the respondent says it contains the views of the complainant's two immediate line managers as to his ability and suitability to carry out the duties of a DCO. It acknowledges that the overall assessment was poor, but points out that in response to a question on suitability for promotion both managers indicated the complainant "may qualify in time" for promotion. The respondent says there was a less favourable option in this section, "unlikely to qualify". The respondent says that, under additional comments, the DCO acknowledged that the complainant had ability, but questioned his capability to perform the duties of a DCO, including supervising staff. The respondent says this was the DCO's assessment, having been the complainant's line manager since 1997. The respondent accepts that the statement that the complainant had not had a single court case in his entire service was incorrect, but it says it was the DCO's honest belief at the time he completed the assessment.

3.11 The respondent notes that the complainant refers to a previous positive assessment of his performance by the DCO, but points out this took place in 1998, some five years earlier. It says the DCO had quite recently taken over as the complainant's line manager and was anxious to encourage an improvement in his performance and to build a good working relationship. It says he was, as a consequence, generous in his assessment. The DCO appended a remark to that assessment stating "[The complainant] has been lacking in motivation due to a perceived grievance, which I feel we are overcoming".

3.12 The respondent says that the complainant was fully aware, prior to submitting his application for promotion, that there were serious questions regarding his work performance. It says that an assessment in August 2003 was poor to the extent that it was decided that the payment of his increment would be withheld. The respondent acknowledges that this did not actually happen, as the complainant had already attained the maximum point on the incremental scale and was not yet eligible for the first long service increment. Nonetheless, the respondent says the assessment clearly records performance issues, the complainant being rated "below average" on all the criteria.

3.13 The respondent says its policy is that interview boards do not have sight of promotion assessments until after the interview process is completed and marks have been awarded. It says that no marks are awarded for assessments and they are used as guidance only for the interview board. It says it has confirmed with the Chair and the interview board members that the assessments were not seen before the interviews, and that candidates' marks were not changed after the assessments were seen. The respondent says, therefore, that the complainant's claim that the assessments "served to influence the board" was incorrect. The respondent also points out that the assessment seen by the interview board included the complainant's comments expressing his clear disagreement with the assessment.

3.14 In relation to the allegation that the complainant's years of service were highlighted in the assessment, the respondent says that it was the complainant who brought this matter to the attention of the interview board. In his application form, he referred to "my 23 years as a Ranger". The respondent points out that the application form for the competition did not ask candidates to include their date of birth. It says this was intentional, as it is aware of its obligations in this area. It says the issue of equality is one of the areas dealt with in briefing interview boards in advance of competitions. It says its policy is very clear and it is totally satisfied that the complainant's age was not considered in determining his suitability for promotion.

3.15 The respondent says that suitability for promotion to DCO was determined solely on performance at interview. It says that it provided interview training for all candidates, particularly to assist those who might not have recent experience of interviews. The respondent's records show that the complainant did not attend the training, although he had indicated an intention to do so. The respondent says that 45 candidates were interviewed and 32 were deemed suitable. A panel of 30 was established and all were offered promotion. The respondent says that, following a later lateral transfer, a vacancy arose in a particular location that had already been offered to all panel members. Following discussions with Impact, a reserve panel was established consisting of the two remaining suitable candidates. The vacancy was offered to number one on the reserve panel, aged 54 years, on 25 February 2005. It was declined on the same day and then accepted by number two on the panel, aged 45 years.

3.16 The respondent notes the complainant's comments about the "imposition" of a reduction in service requirement from five years to three years. It says the change came about as an agreed position with the union. Under Sustaining Progress, eligibility for promotion in the civil service will generally be two years' service. A three year service requirement was seen as an interim step, and the complainant's grade was notified by the Impact Grade Representative on 22 January 2004 that "[a]fter widespread consultation the executive voted to adopt three years."

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 complainant, as well as the respondent's written submissions.

4.2 The complainant alleged that the respondent discriminated against him on the ground of age contrary to the provisions of the Employment Equality Acts 1998 and 2004. Section 6 of the Acts 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-
...(b) conditions of employment...
...(c) promotion or re-grading...
an employer shall not discriminate against an employee or prospective employee...

4.3 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.

4.4 The first matter complained of by the complainant was the meeting of June 2002. In written and oral evidence he described the encounter in extremely lurid terms. The assertions were denied by the respondent, which claimed the meeting was held in a professional and cordial manner. The respondent submitted a typed copy of the notes taken on the day of the meeting by the Higher Executive Officer, who is not part of the complainant's line management. From those notes, it is clear that a significant number of performance and attendance issues were brought to the complainant's attention. While the atmosphere may have become strained at points, there is no evidence whatever that the complainant was subjected to the barrage of hostility and humiliation that he subsequently claimed.

4.5 I note that the day after the meeting, the complainant emailed the DCO claiming to have been bullied and indicating that he wished to pursue a grievance under the bullying code. Despite being advised on several occasions of the correct procedures, the complainant never actually instigated such a complaint. I note also that the complainant never at any stage indicated to the respondent that he felt his treatment was related to his age. However, the most salient point about the meeting is the fact that it took place in June 2002, whereas the complaint was referred in August 2004. Under the provisions of section 77 (5) of the Acts
...a claim for redress in respect of discrimination or victimisation may not be referred...after the end of a period of 6 months from the date of the occurrence or...the most recent occurrence of the act of discrimination or victimisation to which the case relates.
While it is possible to refer a complaint regarding a series of connected events, of which only the most recent is within the six-month time frame, I am satisfied that this is not such a situation. I cannot see that there is sufficient correlation between the meeting in June 2002 and the negative assessment in February 2004, without any intervening incidents, to create a "chain" of events which is within time. I find, therefore, that the complaint regarding the meeting is out of time.

4.6 The complainant has made several complaints regarding the promotion competition in February 2004. He said the assessment form was wrongly faxed to his private address, that he was negatively assessed in contradiction of an earlier positive assessment, that his length of service was emphasised, that a decreased service requirement was imposed shortly before the competition and that no candidate over the age of 50 years was successful in the competition.

4.7 Regarding the use of the fax machine, I note the respondent's evidence that the complainant was in receipt of an office accommodation allowance, allowing the use of his home for certain work-related activities. I note further that the complainant did not contradict the respondent's evidence that the fax machine had been used before for work correspondence and that the complainant had claimed refunds for toner cartridges for the machine. Taking into account the fact that the complainant, the DCO and the Regional Manager were based in three different counties, I am satisfied that the use of the fax machine was reasonable in the circumstances.

4.8 The complainant contended that the negative assessment of him contradicted a positive assessment he received from the DCO in 1998. The respondent claimed that the 1998 assessment was somewhat generous, in an effort to provide encouragement to the complainant. This assertion could not avail the respondent, if there was a clear contradiction between the assessments. However, the respondent submitted a copy of the 2003 assessment, referred to at 3.12 above. From this, and from the 2002 meeting, it is clear that performance problems had been brought to the complainant's attention prior to his promotion assessment. There is no evidence to suggest that the 2004 assessment was anything other than the honest opinion of the complainant's line management.

4.9 The DCO commented in the assessment that the complainant had not had a single court case in all of his 24 years of service, which the complainant said served to emphasis his length of service and thereby highlight his age. The respondent acknowledged that the comment was incorrect, in that the complainant had appeared in court on more than one occasion, but pointed out that the assessment was not seen by the interview board beforehand and that the complainant himself referred to his years of service in his application form. I heard evidence at the hearing from the Chair of the interview board, who confirmed that the members of the board did not see the assessments before they carried out the interviews and marked the candidates. I am satisfied that the DCO's reference to the complainant's length of service did not serve to influence the board.

4.10 In his written submissions, the complainant included a copy of an email from his union grade representative to all Conservation Rangers clarifying the service requirement for promotion. The email makes it clear that discussions took place between management and union regarding the service requirement, that the union consulted widely and that the union executive voted to adopt three years. The reduction in service requirement could not be said to have been "imposed" by the respondent as claimed by the complainant. It should also be noted that the complainant retained his eligibility to compete. The reduction may have benefited some of his colleagues with less service, but that does not in itself constitute discrimination against the complainant.

4.11 I have examined the figures submitted by the complainant regarding success in the promotion competition, reproduced at 2.8 above. They are not strictly accurate, as they show 48 applicants but three of these did not attend for interview, and the number successful was 32 as opposed to 30, after the addition of the reserve panel. Statistics of this nature can be open to a number of interpretations. I note for example that seven out of eight candidates (87%) in the 41-45 age group were successful, whereas six out of six candidates (100%) in the 46-50 age group were successful. This could seem to indicate that success rates increase as one gets older. In the circumstances of this particular case, I cannot find that the statistics are of any particular significance in supporting the complaint of discrimination on the age ground.

4.12 Having taken all of the evidence into account, I do not find that the complainant has succeeded in establishing a prima facie case of discrimination. Clearly, the respondent has made certain mistakes, such as the incorrect statement that the complainant had not had any court cases. However, no evidence was adduced before me to indicate that the complainant's age had any connection with any of the matters complained of. I am satisfied that the respondent has no case to answer.

5. DECISION

5.1 Based on the foregoing, I find that the respondent did not discriminate against the complainant on the ground of age, contrary to the provisions of the Employment Equality Acts 1998 to 2007.

_____________________
Anne-Marie Lynch
Equality Officer

3 August 2007