Mr John Masson
(Casey & Co Solicitors)
vs
Safefood - Food Safety Promotion Board
(Represented by Mason Hayes & Curran Solicitors)
1. DISPUTE
The dispute concerns a complaint that Safefood - Food Safety Promotion Board discriminated against the complainant on the grounds of his age contrary to the provisions of the Employment Equality Acts, 1998 to 2007 (referred to here as the Acts).
2. BACKGROUND
2.1 The respondent circulated a notice to researchers, academic institutions and on its website inviting applications from those interested in taking on co-ordinator roles for each of six new research networks on specific food safety topics which it was establishing. The complainant applied for the co-ordinator role in relation to the Cryptosporidium network. The complainant was turned down for the role and alleges that his age was a factor in the respondent' decision not to select him.
2.2 The complainant referred a complaint to the Director of the Equality Tribunal on the 4th May, 2004. 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 and for the exercise of other relevant functions of the Director under Part VII of the Act on14th June, 2005. Submissions were received from both parties by 15th September, 2005. Because of her imminent transfer arising from the decentralisation of the Tribunal office, the Equality Officer requested that the complaint be delegated to another Equality Officer and the Director delegated the case to Raymund Walsh, Equality Officer on 8th August, 2007. A hearing of the complaint was held on 23rd November, 2007.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant is a qualified Veterinary Surgeon, holds a BComm and MA in economics and at the time of his application was a part time lecturer in economics at the National University of Ireland, Cork. The complainant was aged 62 at the time of the competition and states the selection process for the role of co-ordinator of the Cryptosporidium research network was lacking in transparency. The complainant alleges that the respondent disregarded its own advertisement and stated requirements for the position, did not explain the grading system used to select applicants or the importance applied to any attributes the applicants may have had and no interviews were held which would have enabled applicants to present their plans in detail. The complainant states that the successful applicant had no peer reviewed publications at the time of her application as required in the advertisement though he adds that he himself did not meet this requirement either. The complainant states that he was not informed of the outcome of the selection process until he himself telephoned the respondent.
3.2 The complainant rejects the respondent's argument that the research network co-ordinator contract is a 'contract for service' between Safefood and the successful applicant's own employer and is not properly a matter to be dealt with under the Employment Equality Acts. The complainant argues that the advertisement (Appendix 1) makes no such reference and that it clearly sets out the personal requirements for applicants i.e. the need for a curriculum vitae demonstrating proven expertise in the particular area of research including peer reviewed publications and organizational and management skills and also sets out the responsibilities of the successful applicant. The complainant states that on the basis of the advertisement he applied as an individual and is fully entitled to the protection of the Employment Equality Acts in this regard.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent in this case, the Food Safety Promotion Board, known as Safefood, was established pursuant to the British - Irish Agreement Act, 1999 and has an all-island function in relation to the development of research into food safety in Ireland. On 12th October, 2003 the respondent placed a notice on its website inviting applications from those interested in taking on the role of co-ordinators of six new research networks in specific areas of food safety. A copy of the notice is included in Appendix 1. The notice was also issued by e-mail to relevant institutions and known scientists active in the food safety area. There were three applications for the Cryptosporidium research network, the subject of the present complaint.
4.2 The respondent submits that the present complaint is not properly a matter which should be dealt with pursuant to the Employment Equality Acts, 1998 to 2007 as research network co-ordinators are not employees of Safefood but are in fact appointed as contractors who undertake to co-ordinate a research project in return for which the respondent typically pays a grant in the region of €50,000 over a period of 5 years, 60% at the start of the contract, 20% after 2 years and 20% after 4 years. The contract is entered into between Safefood and the institution in which the relevant research network co-ordinator is based and the grant is paid directly to the institution. The respondent argues that this is clearly a contract for service and not a contract of service.
4.3 Without prejudice to its arguments in relation to the admissibility of the complaint, the respondent states that the complainant has failed to adduce any prima facie evidence of discriminatory treatment on the age ground or indeed that the respondent was aware of his age or that of the successful applicant. The respondent states that a panel of four was set up to evaluate applications for the various research network co-ordinator positions, two of whom are Safefood employees, one member from the Department of Agriculture and Rural Development (Northern Ireland) and one member from Queens University Belfast. The evaluation committee developed assessment criteria which included a review of
i. Proposals for development and co-ordination of each network
ii. Expertise in and knowledge of the subject area and
iii. Organisation/management experience.
The evaluation committee met on 28th November, 2003 to review the applications and its report which was furnished to the Equality Officer. In relation to the complainant and the successful applicant for the Cryptosporidium network the committee recorded:
Complainant
..application was poor, lacked innovative ideas and the emphasis of the proposed network was wrong (first task: a literature review)....lacks appropriate research experience in the subject area..
Successful Applicant
...submitted a very extensive proposal outlining in detail how the proposed research network would be developed and included a GANNT chart and deliverables... innovative approaches such as publication of proceedings of annual research for and 'outreach activity' to enhance public awareness of cryptosporidium were suggested... the applicant is currently actively involved in cryptosporidium research and publications should follow..
The respondent concludes by stating that the complainant has failed to establish any facts whatsoever which might lead to the reasonable belief that he was discriminated against on grounds of age in the evaluation of his application. The respondent refers to several Equality Officer decisions where complainants have failed to establish prima facie evidence of discriminatory treatment including Arthur Broomfield v Offaly County Council (DEC-E-2005/002).
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. I will firstly address the admissibility of the complaint under the Employment Equality Acts having regard to the respondent's argument that the contract for which the complainant applied was a contract for service as distinct from a contract of service and that the respondent was not an employer within the meaning of the Acts. Section 2 of the Acts defines "employer" as follows:
"employer", subject to subsection (3), means, in relation an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;"
The respondent furnished a copy of the contract entered into with National University of Ireland, Dublin (UCD) where the successful applicant is the named co-ordinator for the Research Network on Cryptosporidium. The contract is generally as described by the respondent at 4.2 above apart from differences in the schedule for the payment of the grant to UCD. The successful applicant or project co-ordinator is one of the signatories for UCD. There is nothing to indicate that the contract is anything other than a contract for service nor is there anything to indicate an employer / employee relationship between Safefood and the co-ordinator.
5.2 The published notice (Appendix 1) seeking applications for the co-ordinator roles makes no reference to the nature of the contract other than to say that each research network co-ordinator will be contracted for a five year period and will receive an annual grant. The notice seeks applications from individuals including their curriculum vitae, details of their research experience, publications etc. I am in no doubt that it must enhance the professional standing of an applicant to be selected as project co-ordinator in the institution where he or she is normally employed. The project brings new research funding within the domain of the institution and if the project is seen as a success, must enhance the institution's standing in the particular field of expertise. To that extent, Safefood is engaged in a process affecting the professional status of applicants - it controls access to a particular occupational opportunity. Having selected the successful candidate, Safefood provides a grant to the relevant institution which makes it possible for the successful applicant to pursue that opportunity. If, as the respondent suggests, the selection process falls outside the scope of the Acts, the question arises whether there is any legal impediment to a body such as the respondent, which is not the employer or an employment agency, from setting arbitrary requirements in relation to age or to any of the other discriminatory grounds set out in the Acts and selecting candidates accordingly should it so wish. I am satisfied that the definition of 'employer' at 5.1 above does not extend to the respondent in this case. Nor is there anything to suggest that Safefood is acting as an 'employment agency' in this case or could be considered to be or a body providing 'vocational training' and come within the scope of the non-discrimination provisions of Sections 11 or 13 of the Acts.
5.3 The Equality Act, 2004 in its preamble, cites among its aims, to give effect to Council Directive 2000/78/EC establishing a general framework for combating discrimination in employment and occupation on a range of grounds including age. It is well established in Equality Officer decisions that the Acts are interpreted in accordance with the various equal treatment directives which they aim to implement. The scope of Directive 2000/78/EC is set out in its recitals and Article 3, extracts from which are given below:
Recital (9)
Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realizing their potential.
Article 3
1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:
(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion
.........
It would appear that the scope of the directive as set out above is not limited to employers, employment agencies or vocational training bodies within the meaning of the Employment Equality Acts and that the Directive, in establishing a general framework for equal treatment in employment and occupation extends to any person or body which, in relation to employment, self employment or occupation, controls access or sets recruitment conditions. I consider that an advertisement and selection process such as that conducted by Safefood directly concerns access to an occupational opportunity as set out in Directive 2000/78/EC and that an applicant would be entitled to expect the protections envisaged in the Directive.
5.4 As the national legislation would appear to fall short of providing those protections, the question arises as to whether the Directive could be considered to have direct effect. It has been established in the caselaw of the European Court of Justice (ECJ) that for a directive to be considered to have direct effect certain tests must be satisfied :
(i) the directive must be clear, precise and unconditional (Van Gend & Loos, Case 26/62, 5 February,1963)
(ii) direct effect can only be invoked against a public body or 'emanation of the state' (M. H. Marshall v Southampton and South-West Hampshire Area Health Authority, Case 152/84, 26 February, 1986)
(iii) the date for implementation by member states must have passed.
In Werner Mangold v Rudiger Helm, (Case 144/04, 22 November, 2005) the ECJ has, to a certain extent, removed the requirement to satisfy the above tests where it found that the principle of non-discrimination on grounds of age must be regarded as a general principle of Community law, is not dependent of the transposition into national law of Directive 2000/78/EC and went on to say :
76 Consequently, observance of the general principle of equal treatment, in particular in respect of age, cannot as such be conditional upon the expiry of the period allowed the Member States for the transposition of a directive intended to lay down a general framework for combating discrimination on the grounds of age, in particular so far as the organisation of appropriate legal remedies, the burden of proof, protection against victimisation, social dialogue, affirmative action and other specific measures to implement such a directive are concerned.
77 In those circumstances it is the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective, setting aside any provision of national law which may conflict with that law (see, to that effect, Case 106/77 Simmenthal [1978] ECR 629, paragraph 21, and Case C-347/96 Solred [1998] ECR I-937, paragraph 30).
The evidence in this case is that the complainant made application to Safefood for the research network co-ordinator role on 4th October, 2003. Safefood's evaluation committee met on 28th November, 2003 and the complainant gave evidence that he learned of his non-selection in the course of a telephone call to Safefood on 29th November, 2003. Article 18 of the Directive states that member states shall adopt the necessary implementing laws by 2nd December, 2003 unless a member states seeks an additional three year period to implement its provisions in relation to age and disability. The present complaint would therefore fail the test on the need for the date for implementation to have passed. In the light of Mangold v Helm however this test would appear superfluous. If it is accepted that the Framework Directive is sufficiently clear, precise and unconditional, the next question is whether Safefood could be considered an emanation of the state. Safefood was established pursuant to the British - Irish Agreement Act, 1999 and its functions are set out in the 1999 Act. Given its statutory nature, I would consider that Safefood is an emanation of the state. Having regard to the above, I consider that the Employment Equality Acts,1998 to 2004 must be interpreted in the light of Community Law and that Safefood is appropriately named as respondent in this complaint and that the complaint is validly before the Equality Tribunal.
5.5 Having found that the complaint is validly before the Tribunal, it is for the complainant in the first instance to adduce evidence from which a presumption of discriminatory treatment on the age ground can be made. Having considered the evidence presented on behalf of the complainant I found no evidence linking the decision of the evaluation committee to the age of the applicants. The complainant appears to rely on the assumption that because he was unsuccessful and because the successful candidate, based on the year she first qualified in Veterinary Medicine, was probably younger than him, age must have been a factor. However an examination of the evaluation committee's report (referred to at 4.3 above), the hand written notes from one of the committee members and the respective applications of the complainant and the successful candidate and their proposals for the development of the research network on Cryptosporidium, give no indication that the process was anything other than an objective assessment of the relative merits of the two applications and that age was not a factor in its decision making. I must therefore conclude that the complainant has failed to adduce prima facie evidence of discriminatory treatment on the age ground.
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 to 2007.
Raymund Walsh
Equality Officer
31 December , 2007