EDA0712

This is an appeal by Mr. Johnson (the Complainant) against the decision of an Equality Officer in a claim alleging discrimination on gender and age grounds. He claimed that his non-appointment to a post of Assistant Principal in February 2004 amounted to discrimination on grounds of his gender and age, in terms of Section 6(2)(a) and (f) of the Employment Equality Act, 1998 (The Act) and in contravention of Section 8 of that Act.

Having investigated the complaint, the Equality Officer found that the Complainant had failed to establish a prima facie case of discrimination on the grounds of gender and age and consequently his claim of discrimination failed.

The Complainant appealed to the Court against that decision.

Grounds of Appeal

The Complainant outlined the grounds of appeal, as follows:

• • The Equality Officer failed to make reference to the interview timetable drawn up by the Selection Board for the interviews for the post of Assistant Principal held on 12^thFebruary 2004. The Complainant was allocated fifteen minutes whereas all other candidates were allocated twenty or twenty five minutes.
  • The Equality Officer used inaccurate information in relation to the length of time he held a B Post of Responsibility. He held it for 18 years and not 14 years as noted by the Equality Officer.
  • The Equality Officer failed to take account that the marks allocated under the heading "Experience of a Professional Nature in the Field of Education and Involvement in the School" did not reflect the true picture on the ground. He was awarded 17 marks whereas the successful candidate was awarded 18 marks.
  • The Complainant maintained that he had higher qualifications, much greater professional experience and more involvement in the school than the successful candidate.
  • The Equality Officer did not take into consideration the many alterations included in the successful candidate’s curriculum vitae and the many grammatical errors contained therein.
  • The Equality Officer failed to take into consideration that the Selection Board did not keep contemporaneous notes. In addition, the Selection Board entered an agreed mark rather than marks from each individual interviewer.
  • The Equality Officer failed to investigate previous incidents when he was unsuccessful for promotional posts and which he now alleges was discriminatory on gender and age grounds.

Mr. Johnson was employed by Co. Louth VEC from 1977 until his retirement on health grounds in August 2005. He was employed as a teacher of English and Geography in Bush Vocational School, administered by Co. Louth VEC.

In January 2004 he applied for the position as Temporary Assistant Principal at the school. There were five candidates. The successful candidate was female and younger than Mr. Johnson, he was aged 56 and she was aged 50 at the time. In June 2004, he submitted a claim of discrimination against Co. Louth VEC to the Equality Tribunal.

The Complainant’s Case

The Complainant submitted to the Court that he had higher qualifications and much greater professional experience and had been immeasurably more qualified in the life of the school than the successful candidate. In addition, he had performed the duties of a B Post of Responsibility for 16 years in the school, in contrast to the successful candidate, who held such a post for only 3 years.

The Complainant submitted that the Equality Officer erred in her findings, and to substantiate his position, he cited two cases (i)Crowley v County Cork VEC(DEC-E-2000-10) where the Equality Officer concluded that “the claimant was at least equally involved in the school as the successful candidate” and “given her educational qualifications, service, experience and involvement in the school would have been capable of meeting the assessment criteria on the interview board”; and (ii) DEC-E-2004-041Walsh, Jackson and Acton v Board of Management, Ballinrobe Community School,the Equality Officer stated :

“Having regard to the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001), the onus in the first instance is for the complainants to present factual evidence from which it may be presumed that discrimination has taken place. I am satisfied that where an unsuccessful female complainant in a competition demonstrates that she meets the advertised requirements for a position, has at least similar or superior qualifications and has considerably longer satisfactory service compared to a successful male candidate a prima facie case of discrimination has been established and the burden of proof must shift to the respondent to show that there were reasons unrelated to gender for the outcome.”

Mr. Johnson stated to the Court that the successful candidate had made many alterations to her application form thereby enhancing her opportunity of being successful for the vacant position. He said that he was aware the she had scanned the application form from the VEC’s website and edited it in such a way as to provide her with additional space to answer the questions posed and she included additional numbered questions not included in the standard application form. He questioned how this had come about and suggested that she must have received guidance and encouragement from the Respondent to do so, as the successful candidate was not computer literate. He maintained that he was disadvantaged as he was not given the same opportunity.

With reference to the Respondent’s failure to keep contemporaneous notes, the Complainant again cited theWalshcase. In that case the Equality Officer applied the principles set down by this Court inSouth Eastern Health Board and Brigid BurkeDEC-E-2003-014.

In that case the Court stated :

"Where in a case such as this the interview committee met in advance, looked at the two curriculum vitae, then decided to set the marking criteria, allocated a substantial number of marks for what can be regarded as the subjective elements of the assessment, and then failed to retain any notes as to how they arrived at that assessment, it would be extremely difficult for them to discharge the onus of proof placed upon them. In this case, the respondent has not discharged that onus".

The Complainant stated that his experience under the criteria “Experience of a Professional Nature in the Field of Education and Involvement in the School” was not given sufficient credit. He stated that he had greater experience than the successful applicant in a number of fields which he broke down into the following headings:

• • Personal professional development through in-career and/or external programmes.
  • Involvement with boards of management/parents association/representative bodies/school committees.
  • Work in association with educational board and institutions.
  • Course/subject development, co-ordination of courses.
  • Involvement in organising school events.

Mr. Johnson stated that for the purposes of the selection process and in an effort to promote greater transparency in appointments to Posts of Responsibility, agreed sets of criteria were agreed by the Teachers Union of Ireland (TUI) and the Irish Vocational Education Association (IVEA) representing VECs and the Department of Education and Science. These procedures were set out in Circular 43/00. Copy of which was submitted to the Court.

Mr. Johnson maintained that the Selection Board’s failure to assign responsibility for keeping records and to enter an agreed mark rather than marks from each individual interviewer was not in line with the VEC’s “open, transparent and publicly accountable” system in accordance with Circular 43/00.

The Respondent’s Case

Counsel for the Respondent, Ms Cliona Kimber, disputed the allegation of discrimination and maintained that neither gender nor age were factors for consideration before, during or after the interview process. She maintained that the appointment to the Post of Assistant Principal was on merit alone and not on any discriminatory ground, and submitted that Mr. Johnson had shown no evidence whatsoever, that the selection process was biased. She took the view that due to the lack of evidence adduced by Mr. Johnson, the burden of proof cannot shift to the Respondent.

Ms. Kimber raised two preliminary points –

• (i)There was no significant age difference between the successful candidate and the Complainant, they were both in the same age bracket, 50 and over, consequently the Act did not apply to this allegation.
  
  (ii)The Court was precluded from hearing complainants of discrimination, which allegedly took place prior to January 2004 and for which no claims were submitted within the six-month time period provided under the Act. These allegations were first brought to the attention of the Respondent at the Equality Officer’s hearing held on 19^thSeptember 2006.

At a pre-interview meeting, the panel drew up a number of questions relating to the key areas as outlined in Circular 43/00 and these were allocated to the three members of the board. In accordance with the circular marks were attributed for the critical attributes required to effectively carry out the duties of the post under the following headings:

Ms. Kimber stated that all candidates were given a full opportunity to elaborate on matters they thought were of relevance. The application process outlined that candidates who wished to do so, could avail of part of the interview time to make a presentation on a topic of their choice. The successful candidate availed of this option, the Complainant did not. Therefore, Ms. Kimber submitted that he did not avail of all opportunities to do his best.

Ms. Kimber submitted that the successful candidate answered questions both on the application form and at interview in a more detailed, planned and focussed way than the Complainant and she demonstrated a superior ability, skill and insight into the demands of the position, than he did. Counsel explained that the post on offer as an Assistant Principal was as a member of the senior management team and stressed the point that management skill/abilities were of utmost importance for the post. Therefore, the process required that the successful candidate must not necessarily have long service but must demonstrate an ability to be a good manager. To substantiate this point, Ms. Kimber outlined for the Court details of the increasing level of Management responsibilities, which have taken place in the school in recent years. She informed the Court that the successful candidate displayed a much greater ability in this regard than the Complainant did.

The Evidence

Both parties made comprehensive written and oral submissions to the Court. The three members of the Interview Board gave evidence:

• • Senior Representative, Mr. K – Chairperson of Co. Louth VEC and Lecturer in Business.
  • Education Expert Mr. C – Education Officer with Co. Louth VEC and former Principal of a School for 16 years
  • Personnel Expert, Ms. C – Personnel Manager in the private sector.

Preliminary Points

• (i)The Equality Officer considered the Respondent’s arguments that there was no significant age difference between the successful candidate and the Complainant. The Equality Officer concluded that age brackets are “an entirely arbitrary construct, adopted usually for convenience” and proceeded to hear the case. The Court concurs with this view and in all the circumstances of this case, will proceed to hear the Complainant’s appeal.
  
  (ii)The Court had considered the point raised by Ms. Kimber that the Court was precluded from hearing complainants of discrimination, which allegedly took place prior to January 2004.

InDepartment of Health and Children v GillenEDA0412 the Court considered an application to include a claim of discrimination, which occurred outside the time limit, the Court found:

“The first of these relates to whether the complaint in relation to the interview held on the 22nd of November, 1999, was in time.�.Section 77(5) of the Employment Equality Act states that

“a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of the occurrence, or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".

The complainant’s complaint is that after he had reached the age of fifty he was no longer considered by the appellant as being suitable for promotion purely on age grounds. On each occasion he competed, he was rejected by the appellant on the grounds that he was over fifty years of age. The Department submits that if the complainant is correct (which it does not accept) then he was subjected to two separate and distinct acts of discrimination, in two separate and distinct competitions by two separate bodies.

In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground”.

The allegations in the present case date from the 1980’s onward and were not the subject of claims under the Act. They were first raised with the Respondent at the Equality Officer’s hearing held on 19^thSeptember 2006 convened to hear the single alleged incident claimed under the Act. Beyond merely stating the fact that he had previously been unsuccessful, the Respondent in his evidence did not establish any facts from which it might be inferred that a pattern of discrimination was present.

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�The complaint, which was lodged in time related to an allegation of discrimination, which occurred on 26th November 1999.

In addition, the Court is satisfied that no complaints were made under the Act concerning acts of discrimination, which allegedly occurred between the periods 1980 and 2000. Section 77(6) of the Act provides that in exceptional circumstances the time limit for submitting such complaints may be enlarged to one of 12 months by the Director of the Equality Tribunal on application made to her in that behalf. No such application was made in this case and in any event any such application, even if granted could not have availed the complainant in bringing his complaints inside the time limit. Therefore, the Court does not have jurisdiction to hear these complaints.

Burden of Proof

The apportionment of the burden of proof in cases of discrimination is now governed by Section 85A of the Employment Equality Act 2004. The events giving rise to the instant case predate the enactment of that Section. However the Section prescribes a procedural or evidential rule, which is applicable in cases, which come on for hearing after its commencement (see Djemma Tsourova v. ICON Clinical Research Ltd16 ELR 250). The Section is thus applicable in the instant case.

The rule requires the complainant to establish the primary facts upon which the claim of discrimination is grounded. If those facts are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the respondent must prove the absence of unlawful discrimination (seeMitchell v Southern Health BoardE.L.R. 201).

Conclusions of the Court

The Court has considered all of the evidence adduced and the submissions of the parties, an abridged summary of which is contained herein.

The mere fact that a younger employee and an employee of a different gender was promoted in preference to the Complainant could not in itself constitute a basis upon which discrimination on the age or gender ground could be inferred. It would be necessary to show that the Complainant was better qualifiedor met the criteria for promotion to a greater degree that the younger/female successful candidates.

In that regard it is normal for the employer to determine the qualification or other criteria for promotions. The Court could only intervene if the qualifications or criteria selected were such as to be either directly or indirectly discriminatory.

Having examined the evidence concerning the selection process, the Court is satisfied that each candidate was given an equal opportunity to apply for the position of Assistant Principal in February 2004. Notices were posted in the school giving details of the temporary vacancy and setting out the procedures for application. Application Forms had to be completed and returned to the Personnel Section, Co. Louth VEC by no later than Friday 23^rdJanuary 2004.

In this instance the criteria for promotion was the marking scored according to Circular 43/00.

• • Under the criteria“Capacity To Meet the Needs of the School”the successful candidate scored 48 marks out of 50, Mr. Johnson scored 39 marks out of 50.
  • Under the criteria“Experience of a Professional Nature & Involvement With The School”; the successful candidate scored 18 marks out of 20 and Mr. Johnson received 17 marks.
  • Under the criteria“Service to the Scheme”marks were allocated according to prescribed terms depending on the candidates’ length of service to the scheme, these marks were non-discretionary and were awarded prior to the Interview Board’s deliberations and are not in dispute. The successful candidate scored 15.45 marks out of 30, Mr. Johnson scored 23.63 marks.
  • The total marks awarded to the successful candidate was 81.45% and to Mr. Johnson 79.63%.

Evidence was given that the successful candidate opted to make a presentation as part of her application, Mr. Johnson did not. Each member of the Board testified that she had displayed strong management abilities and vision for the school and developed her ideas in a very detailed manner both in her application form and in her performance at interview/presentation. The Chairman of the Board stated “she displayed a capacity to fulfill a managerial role, whereas the Complainant did not”. He told the Court that the Mr. Johnson’s application form and answers at interview were very generalised. In consequence, she was rated the highest mark of any candidate under“Capacity To Meet the Needs of the School”and substantially ahead of the Complainant’s marks under this criteria.

With reference to the award of 17 marks to Mr. Johnson under the “ Experience of a Professional Nature in the Field of Education & Involvement with the School”, the Complainant disputed the Equality Officer’s finding and stated that she had failed to take account that the marks allocated to him under this heading did not reflect the true picture on the ground. To substantiate this contention Mr. Johnson outlined details of his participation and involvement in Bush School activities for more than 25 years. Management accepted that Mr. Johnson had held a B Post of Responsibility for 18 years and not 14 years as reported by the Equality Officer and stated that the successful candidate held a B Post from 1979 to 1989, a period of 11 years, when she had resigned it for family reasons.

The Court understands that this criteria is not so much reflective of length of service but with the value placed on a candidates experience of a professional nature in the field of education and their involvement in the school. It takes account of e.g. personal professional development initiatives; involvement with Board of Management etc.; work in association with educational bodies/institutions; courses/subject development; involvement in organising school events etc. Both the successful candidate and Mr. Johnson were rated in the “excellent” rankings (17 –20 marks), although she received 18 marks and he received 17 marks. On examination of the oral evidence given by the Interview Panel and the application forms, the Court cannot find fault with the marks allocated to the Complainant under this heading. Therefore, on the evidence adduced the Complainant has not established to the satisfaction of the Court that the marks awarded under this criteria were irrational or unfair.

There is no dispute that the Complainant had higher educational qualifications than the successful candidate, he held an MA, she did not. Evidence was given that he was awarded additional credit for holding this qualification.

Notwithstanding the Complainant's superior qualifications, the successful candidate was awarded higher marks because she was regarded as the better candidate by the Interview Board. The Court is satisfied that this decision was not influenced by the gender or age of either candidate. In that regard the Court notes that the successful candidate was subsequently appointed as Vice Principal of the School in 2005 and recently appointed as Principal.

The Court has consistently stated that it is not the responsibility of this Court to decide who was the most meritorious candidate for a position. The function of the Court is to determine whether the gender status or the age of the complainant influenced the decision of the employer. The Court is of the view that there is no viable evidence, which could indicate that the marks awarded were in any way, tainted by discrimination on the gender or age grounds.

The Court now proceeds to examine the other points raised by Mr. Johnson in furtherance of his claim that he was discriminated.

• • Mr Johnson stated that the successful candidate had many grammatical errors in her application form and that she had availed of additional space to answer the questions. On that basis he contended that she had been treated more favourably than other candidates. The Court can find no grounds to support this contention. It accepts the view held by the Respondent and the Equality Officer that it is not unusual these days for application forms to be scanned onto a computer and for the answers to be submitted in typed form. Mr. Johnson inferred to the Court that she was assisted by the Respondent in some way in the completion of her application form. Mr. Johnson produced no evidence to support this contention. The Court is of the view that whether she had the computer skills necessary to undertake this task or availed of assistance from elsewhere is of no relevance to the Court in this matter.
    
  • The Court is of the view that the “grammatical errors” in the successful candidate’s form were minor, there were no major alterations to the form, the candidate choose to allow herself additional space to answer the questions, there was nothing prohibiting the Complainant from doing likewise. Mr. Johnson drew the Court’s attention to the fact that she incorrectly numbered question No. 8 as question No. 9. The Court viewed this was an error of no significance. In essence, the Court is of the view that these errors/liberties were of little significance, and certainly did not infer a presumption of discrimination.
  • Mr. Johnson contended that he had been unfairly treated as the time sheet for the Interviews indicated that he was being allotted 15 minutes for interview while others were allotted 20/25 minutes. From the oral evidence given by the members of the Interview Board, the Court is satisfied that all candidates were allocated the same time for interview, regardless of whether they opted to make a presentation as part of the process.
  • To substantiate his case the Complainant referred to the Interview Board’s failure to keep contemporaneous notes and its failure to individually mark each candidate. The failure to keep records has been commented on by this Court many times. A failure to keep records of interview processes, which of itself may not be discriminatory, when coupled with other factors, may lead a Court to infer that there has been discrimination. In the instant case, the Respondent submitted a detailed list of the criteria used in the selection process, agreed breakdown of the marking system applicable to each of the criteria, ranking of marks according to a scale from “Fair, Good, Very Good or Excellent”. Details of the marks awarded under each of the headings for each candidate was submitted. Evidence was given to the Court that the Interview Board did not take any contemporaneous notes during the interview. Taking account of all these above points the Court cannot find fault with the record keeping in this competition or in the decision making process on the marks awarded.
  • The Equality Officer in her decision noted “In relation to the selection process itself, I note that the complainant has no issue with the composition of the Interview Board or the type of question asked, nor does he have an issue with the marks in relation to seniority.”

Finally, and for the sake of completeness, the Court is fully satisfied that the competition in this case was conducted fairly and in accordance with accepted good practice. It is noted that the marking was on objective pre-determined criteria and that the members of the Board were trained in the requirements of anti-discrimination law. Both the Respondent and the successful candidate were excellent candidates. However, this Court is not concerned with the suitability of candidates for the particular role, merely whether the selection process is tainted by discrimination and in this particular case it can find no such evidence.

For all of the foregoing reasons the Court is not satisfied that the Complainant has established facts from which it could be inferred that he was discriminated against on the gender or age grounds.

It is the determination of the Court that the complaint herein is not well founded and that the Respondent did not discriminate against the Complainant on grounds of gender or age. The appeal is disallowed and the Decision of the Equality Officer is affirmed.

Signed on behalf of the Labour Court



Caroline Jenkinson
18th July,2007______________________
DNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.