Mr Michael Scanlon
vs
Rescon
(Represented by Sherwin O'Riordan Solicitors)
1. DISPUTE
The dispute concerns a complaint that Rescon Ltd discriminated against the complainant on the grounds of his age and gender contrary to the provisions of the Employment Equality Acts, 1998 and 2004 (referred to here as the Act).
2. BACKGROUND
2.1 The complainant, aged 54 at the time, applied for an advertised position of Senior Bookkeeper at the respondent company and attended for interview on 15th February, 2005. He was unsuccessful in his application and a younger female candidate was appointed. The complainant alleges that he was discriminated against on the grounds of his age and gender in not being appointed.
2.2 The complainant referred a complaint to the Director of the Equality Tribunal on the 27th July, 2005. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act on17th November, 2006. Submissions were received from both parties by 12th January, 2007 and a hearing of the complaint was held on 14th February, 2007. Further documentary evidence was requested from the respondent and correspondence ensued until 8th May, 2007.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant states that when he attended for interview one of the first comments from the interviewer was 'happy birthday' although his birthday had been several days earlier and suggests that the interviewer was focused on his age from the outset. The complainant states that obstacles were put in place in an effort to make it impracticable for him to take up the position i.e. he was informed that the successful candidate would be required to work for one day alongside the current job holder prior to 25th February, 2005 (within ten days of the interview) and to start work within 2 to 3 weeks time although he would have had to give notice to his current employer. When he told the interviewer that 'travel difficulties' was his reason for changing jobs he was told that the respondent was itself moving to new premises although this had not happened 18 months after the interview. The complainant states that he would have been willing to accept the post at the advertised salary of €35,000 and that he received a phone call from the respondent on the 3rd March, 2005 enquiring if he was still interested in the job as a decision had not yet been made. Later the same day he received an e-mail from the respondent stating "To be honest Michael, they have decided to change the role to a more junior role - more of an accounts assistant ... in which case you would be too experienced for the job". The respondent subsequently re-advertised the post the next day at a higher salary of €40,000 describing the position as Accounts Assistant. The complainant believes that his background in financial accounts made him eminently suited to the post as advertised but that the respondent came to the conclusion that his age and gender did not fit the profile that the respondent was seeking and that the respondent rejected his application and extended the selection process for that reason.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the allegations of discrimination on the grounds of age and gender. The serving Financial Controller, who was in his late 40's, was due to retire on 25th February, 2005 and the respondent states that it decided in late 2004 to begin outsourcing its financial management functions and to downgrade the remaining work to that of Senior Bookkeeper. The respondent advertised the position of Senior Bookkeeper at a salary of €35,000 in early February, 2005. The respondent states that it had no ulterior motive in expecting a prospective replacement to have at least one day's overlap with the retiring Financial Controller. The respondent received eight responses to the advertisement of February, 2005 and following a shortlisting process, called five to interview of whom four actually attended for interview. The respondent provided the following table showing the ages, gender and progress of the eight applicants in the competition.
| No. | Esitmated Age | Gender | Invited to the First Interview | Invited to the Second Interview |
|---|---|---|---|---|
| 1 | 54 | M | Y | Y |
| 2 | 45 | F | Y | N |
| 3 | 46 | M | N | N |
| 4(Complainant) | 54 | M | Y | Y |
| 5 | 41 | F | Y | Y |
| 6 | 41 | M | Y | Y |
| 7 | 39 | M | Y | N |
| 8 (Appointee) | 44 | F | Y | Y |
The respondent stated that the above breakdown shows that slightly more male candidates were called to the second interview than female candidates and that two 54 year old male candidates, including the complainant, were called to the final interview. The respondent argued that theses figures show that neither gender nor age were deciding factors in the selection process.
4.2 The respondent stated that the advertised salary would always be the maximum salary and would be negotiable depending on experience and was pitched so as to attract as wide a pool of candidates as possible in a competitive jobs market. The respondent states that the position was advertised in various newspapers and on the internet and that the published requirements varied considerably from ad to ad, evidence of the fact that the respondent was doing its best to attract a suitable candidate at the lowest salary. The respondent states that a decision was made during the selection process that the outsourcing arrangement had been more successful than anticipated and that the duties of the vacant post could be broadened to include other duties. The candidate who was appointed had accounts experience in a recruitment environment, the respondent's core business, and the respondent favored that experience over that of other candidates. The respondent states that this candidate was interviewed on 21st February 2005 and that a job offer issued to her on 4th March, 2005, the day after the complainant was informed that he had been unsuccessful. By way of explanation as to why the post was re-advertised on 4th March, 2005, the same day on which an offer issued to the successful candidate, the respondent stated that as far as it could ascertain, the ad was a repeating ad and had not been cancelled. The respondent referred to the Equality Officer's decision in an equal pay complaint i.e. Cassidy v Citibank (DEC-E-2005-035) where objective decisions in relation to pay were found to have been based on merit.
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. It is for the complainant in the first instance to adduce evidence from which a presumption of discriminatory treatment can be made. I have considered the evidence presented under four headings (i) respondent's reference to the complainant being 'too experienced' (ii) the re-advertising of the position at a higher salary after the complainant's interview (iii) the pre-selection process and calling for second / main interview and (iv) the complainant's interview.
(i) Respondent's reference to the complainant as being 'too experienced'
The complainant refers to an e-mail which he received from the respondent on th 3rd March, 2005 informing him that the role of the post had been down-graded to a more junior role of accounts assistant and that he 'would be too experienced for the job'. Experience is by its nature, cumulative over time, and any increase in experience is accompanied by an increase in age. Therefore to say that a candidate is 'too experienced' is open to the interpretation that a candidate is viewed as being too old for the job and is in itself sufficient to create an inference of discriminatory treatment on the age ground. It is for the respondent to prove the contrary (Section 85A of the Act). The respondent offered no evidence as to how additional experience could negatively impact on job performance but suggests that the author wished to let the complainant down gently rather than tell the complainant directly that he was not considered suitable for the position.
(ii) The re-advertising of the position at a higher salary after the complainant's interview
In arriving at the conclusion that the respondent did not wish to appoint him because of his age and gender, the complainant has placed particular emphasis on the fact that a further advertisement for the post, showing a higher salary, appeared in a newspaper on 4th March, 2005, the day after he received the e-mail referred to at (i) above. I note the respondent's evidence that a decision to offer the position to the successful candidate was taken that same day and that a job offer issued to her that day. The respondent also furnished written confirmation from the Revenue Commissioners that the appointee commenced employment with the respondent five days later on the 9th March, 2005. I am satisfied that the further advertising of the position had no particular relevance to the complainant's candidature and that younger candidates and female candidates who had already attended for interview, including the person appointed, would have been in the same position in that regard. I accept on the balance of probabilities that the appearance of the ad on 4th March, 2005 occurred because the ad had already been placed with the Irish Times in its revised form some time previously and had not been withdrawn at the point when a job offer had been made.
(iii) The pre-selection process and calling for second / main interview
While there was some disagreement between the parties as to what constituted a 'first interview' the respondent has given evidence that seven of the 8 original applicants were given an initial screening interview, although the complainant's initial interview may have consisted of a phone call only and that 5, including the complainant, were called to a second interview. I have considered the evidence in relation to the profile of candidates called to final interview (table at 4.1 above) and am satisfied that there is nothing in the age and gender profile of candidates called to the final interview to suggest a policy of discrimination against male or older candidates. I note in particular that two male candidates aged 54 were called to the final interview while younger candidates, both male and female, were not.
(iv) The complainant's interview
I note what the complainant describes as 'obstacles' being placed in his way at interview however I am not persuaded that the respondent's desire for a one day overlap with the incumbent in the post is evidence of discriminatory treatment. As regards the fact that the complainant was told that the respondent would be moving premises, I note that the respondent had in fact moved to a new premises by the date of the hearing and again I find no evidence of discriminatory treatment in this regard. The Labour Court has referred in the past to the need for interviewers to retain notes and that failure to retain a record for the reasons for a particular decision will make it more difficult for an employer to rebut an allegation of discriminatory treatment where prima facie evidence of discrimination exists. I note that the respondent was unable to provide any records of the interviews in terms of marks awarded or notes however the Managing Director of the company who was the sole member of the interview board was present at the hearing and gave evidence that while the complainant's experience was extensive, the successful candidate not only had the relevant financial experience but had also worked in a recruitment environment and that that background added value to her candidature and made her the more suitable candidate for the vacancy in the respondent company.
5.2 Having regard to all of the evidence presented in this case, particularly the age and gender profiles of candidates called to a second / final interview and the evidence in relation to the appointee's experience in recruitment, I am prepared, on the balance of probabilities, to accept that the respondent had objective reasons unconnected with the complainant's age or gender, for its decision to appoint a younger female candidate notwithstanding the inference of discriminatory treatment referred to at 5.1 (i) above.
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
6 July, 2007