DEC-E2007-026 - Full Case Report

EMPLOYMENT EQUALITY ACTS 1998 and 2004

EQUALITY OFFICER'S DECISION DEC-E2007-026

PARTIES

Murtagh

AND

Longford County Council

1. DISPUTE

1.1 This dispute concerns a claim by Mr James Murtagh that he was discriminated against by Longford County Council on the ground of age, contrary to the provisions of the Employment Equality Acts 1998 and 2004, when he was deemed to be not qualified for the post of NRA Liaison Engineer in January 2004. The complainant subsequently made complaints regarding matters prior to that date, but he agreed at the hearing that his complaint was confined to that specific competition.

1.2 The complainant referred a claim to the Director of the Equality Tribunal on 15 July 2004 under the Employment Equality Acts 1998 and 2004. In accordance with her powers under section 75 of the Acts, the Director then delegated the cases on 1 July 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 joint hearing was held on 3 November 2006. Subsequent correspondence with the parties concluded on 31 January 2007.

2. SUMMARY OF THE COMPLAINANT'S CASE

2.1 The complainant, who was born in 1944, has been employed as an engineer by Longford County Council since 1982. In January 2003, he was promoted from his grade of Executive Engineer to that of Senior Executive Engineer, following a promotional competition operated by the Local Appointments Commissioners, and was assigned to his existing employer.

2.2 The complainant says that, in October 2003, the respondent advertised a vacancy for National Roads Authority (NRA) Liaison Engineer, a two-year contract at Senior Executive Engineer level. The advertised essential criteria for the post were: recognised degree or equivalent professional qualification in engineering; seven years' post qualification experience; capability of dealing efficiently with the various types of engineering work undertaken by a local authority; and a high standard of technical training and experience and of administrative experience.

2.3 By the closing date of 6 November, the complainant says that applications had been received from four candidates, including himself. The complainant says that, surprisingly, no interviews were arranged, but the respondent re-advertised the vacancy in the national press on 16 November. The complainant says he understands that this re-advertisement was initiated by the respondent, and that the NRA's only involvement was to authorise the additional cost. Seven additional applications were received following the second advertisement. The complainant says he was the only applicant to already hold the post of Senior Executive Engineer.

2.4 The complainant says that interviews were held on 14 January 2004. The Interview Board comprised three people: two male engineers from the NRA and a female Director of Services from another local authority who acted as Chair. The complainant says the Board did not ask him questions about his extensive roads and other experience, and he says he was informed by the respondent on 21 January that he had been unsuccessful. The complainant says he understands that the Board regarded four of the seven interviewees as competent for the post of Liaison Engineer, and they were placed on a panel. Of the remaining five applicants, three were deemed ineligible and two failed to attend for interview. The complainant submits that it could be established that most of the successful applicants were aged in their late twenties or early thirties.

2.5 The complainant says that he made a request to the respondent under the Freedom of Information Act 1977 (FoI) on 19 May. He says he outlined in his letter that, in view of the fact that he already held an equivalent post to that advertised, he was ostensibly qualified and he asked on what criteria the Board considered him unsuitable for the post. In response to his FoI request, the complainant received his interview marking sheet, which is reproduced below. The complainant says that, apart from the marks given for qualifications, the marks given in each of the other categories could not be a true representation of his skills, knowledge or experience.

2.6 Regarding the category Management Experience/Skills, the complainant says the Interview Board did not deal with his specific experiences over the thirty years of his career. He says that this deprived him of an opportunity to demonstrate his relevant experience and skills by reference to the other candidates, which he says is discriminatory. He says the Interview Board did not discuss with him Leadership or Ability to Schedule/Prioritise Work, and did not give him the opportunity to demonstrate and verify those skills. The complainant says he finds it difficult to comprehend how the Interview Board managed to evaluate his overall performance in this category to have been a mere 5 marks short of the standard to be reached in order for him to be regarded as competent to carry out the role of Liaison Engineer at Senior Executive Engineer level. The complainant says that in his opinion these facts demonstrate discrimination and speak for themselves in that regard.

2.7 With reference to the Knowledge category, the complainant accepts that he had not been happy with his work environment over the previous ten months (details submitted - these matters related to the withdrawn complaints made by the complainant and are therefore not detailed here). Nevertheless, he says he was carrying out the precise duties assigned to him by his management. He points out that at the date of the interview he was already a fully-fledged Senior Executive Engineer, and had four years' previous experience as an Acting Senior Executive Engineer. By contrast, he says the applicants selected by the Interview Board were not fully-fledged engineers at senior level. He says the 75 marks given to him by the Interview Board was a poor representation of his overall engineering knowledge associated with local authority work spreading over thirty years. He says the Board did not permit him to demonstrate the knowledge gained from his experience resulting in discrimination against him in the conduct of the interview.

2.8 The complainant says, with regard to the Relevant Experience category, that he has at least as much relevant experience as the other applicants, and probably more than many of them. He says he had extensive experience of the acquisition of lands for new road works, gained over a three year period as Area Roads Engineer with the respondent.

2.9 The complainant submits that discrimination arises when a person is treated less favourably than another in the same circumstances. He says that he was in a position to demonstrate to an Interview Board, if given the opportunity, that he was equally or better qualified, and equally competent, to the other candidates interviewed. He says the conduct of the Interview Board in failing to give him an opportunity to demonstrate his ability discriminated against him by treating him less favourably than others who did not have his experience. The complainant says that the respondent established the Interview Board and was responsible for the direction of the interviewing procedures. He submits that failure to ensure that interviews were conducted in a fair and reasonable manner clearly amounts to discrimination against him by his employer.

3. SUMMARY OF THE RESPONDENT'S CASE

3.1 The respondent says the position of Liaison Engineer relates to the co-ordination for major national road projects within the administrative area of the local authority. It says this is a specific role related to national road projects and is therefore different from the generic grade of Senior Executive engineer, to which it is analogous for pay purposes.

3.2 The respondent says that recruitment at the level of Senior Executive Engineer would normally be undertaken by the Public Appointments Service. On this occasion, the council itself managed the recruitment process. In a cost-saving exercise, the council decided on some local advertising, some web-based advertising and insertion of notices in classified Sunday newspapers. The Senior Engineer in the Roads Department requested that the post be re-advertised after just four applications, an unusually small number, were received. On the second occasion, the council followed a more traditional approach, adding advertisements in national newspapers. A further seven applications were received. After the exclusion of two ineligible applications, nine applicants were invited to attend interviews on 19 January 2004.

3.3 The respondent says that seven applicants attended for interview, four were placed on a panel and three were found to be not qualified for inclusion. The complainant did not qualify for inclusion. The respondent says that unsuccessful applicants, including the complainant, were advised on 21 January 2004. It says the complainant did not make a complaint directly to the Council, but lodged a claim to the Equality Tribunal on 15 July 2004 citing discrimination on the ground of age.

3.4 The respondent says the Interview Board consisted of very experienced interviewers and was an independent board established by the County Manager to evaluate each applicant for the purpose of selecting the best person for the position. It says applicants were assessed solely on their performances at interview and on the written applications which they furnished. The respondent says it was a matter for the Interview Board to ascertain the candidates that are considered most suitable for the position on the basis of their merit in relation to their respective capabilities, skills, competencies, aptitude, experience and qualifications. The respondent says the age of the applicants was not a factor in the selection process. It says the Interview Board did not request, was not supplied with and was not aware of the age of any of the applicants.

3.5 The respondent says that, as a public sector body, it is fully committed to the equality agenda and has a comprehensive equality policy (copy supplied). The policy includes a commitment that "Recruitment and selection methods are designed to encourage applications from all potential candidates and there is a commitment that there will be no express or implied discrimination against any candidate at any stage of the selection process." The respondent says that, to give practical expression to this commitment, all members of interview boards are given copies of the Council's Notes for Members of Interview Boards. The Notes advise interview boards as follows: "Longford County Council is committed to providing equality of opportunity in all employment practices...the criteria for selection and promotion are determined solely by the requirements of the relevant capabilities, competencies, aptitudes, experience and qualifications."

3.6 The respondent submits that the complainant claims that he was more suitable for the post on the basis of his longer experience, but it says that it is clear from the pre-determined criteria that experience was but one element in the selection process. In support of its position, the respondent cites the decision in McCormick v Dublin Port Company (DEC-E2002-046), where the Equality Officer said "[the respondent] is entitled to decide what criteria it considers best for its own promotional competitions, subject only to the stipulation that these may not be discriminatory criteria. The fact that seniority in itself is not the determining criterion for promotional competitions does not constitute discrimination on the ground of age."

3.7 The respondent acknowledges that the complainant may believe that he was the most suitable candidate for the post, but says it is satisfied that the decision of the Interview Board was based on its bona fide assessment of the relative merits of the complainant vis-à-vis the other candidates. The respondent points out that the complainant has not alleged that he was asked different questions from the other candidates, but rather that the Interview Board failed to establish his level of experience through the questions which were asked. The respondent says that each candidate had the opportunity at the end of the interview to raise additional issues and it says the complainant had not indicated that he had availed of this opportunity.

3.8 The respondent says the interview process was conducted at all times in an impartial and wholly objective manner. It says the complainant had alleged that it failed to ensure that interviews were conducted in a fair and reasonable manner, but that he had not alleged that any specific instance of discrimination had occurred. The respondent says that the complainant's argument is rather that the outcome of the process confirms that discrimination took place in that if the Interview Board had acted correctly he would have been the successful applicant. The respondent notes that the complainant has intimated that it interfered with the interview process in some fashion. The respondent says the complainant is grossly unfair in his allegations and attempts to impugn the integrity of officials of the respondent and members of the Interview Board.

3.9 The respondent notes the complainant's assertion that, as he was already serving in the grade of Senior Executive Engineer, and as the post of Liaison Engineer was at that level, his failure to be appointed must have constituted discrimination. However, the respondent submits that the position of Liaison Engineer was different from that held by the complainant, although at the same grade.

3.10 The respondent says that it is an equal opportunities employer. It says the complainant, other than alleging he was discriminated against on the ground of age, has provided no substance to such an allegation. The respondent rejects the allegation of discrimination, and regrets that the complainant should feel his application did not receive equitable treatment because of his age. The respondent submits that the fact that there is a difference in age between the complainant and the successful applicant does not of itself require the Equality Officer to look to the respondent for an explanation (Davis v Dublin Institute of Technology, High Court, 2000, Quirke J cited in support). The respondent requests the Equality Officer to reject the complainant's claim.

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 parties.

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-
...(d) promotion or re-grading...
an employer shall not discriminate against an employee or prospective employee...

4.3 The Labour Court, in a recent determination of a claim on the race ground (Icon Clinical Research and Tsourova - Determination No EEA071) pointed out that "The allocation of the burden of proof in discrimination cases is now governed by s85A (1) of the Act as amended. This provides: -
(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
This Section was enacted to give effect to Article 10 of Directive 2000/78 (the Framework Directive) and Article 8 of Directive 2000/43 (the Race Directive). In Determination EED054 Tsourova v ICON Clinical Research [2005] 16 E.L.R. 250 the Court took the view that the rule of evidence provided by s 85A of the Act as amended is applicable in current proceedings including proceedings relating to events which occurred prior to its enactment. In line with that conclusion the Court is satisfied that if the Complainant can establish facts from which discrimination can be inferred the onus of proving the absence of discrimination shifts to the Respondent." The first matter to be addressed, therefore, is whether the complainant has established the relevant facts.

4.4 Equality Officers and the Labour Court have pointed out on several occasions that it is not their role to carry out a further assessment of interview candidates. The Labour Court said in Dublin Institute of Technology v A Worker (Determination No DEE/994) that "It is not the responsibility of the Equality Officer or this Court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the sex or marital status of the complainant or the appointee influenced the decision of the Board." I am satisfied that the only matter to be considered is this: when the complainant was unsuccessful in his application for the post of Liaison Engineer, was this as a result of unlawful discrimination on the ground of age?

4.5 The Labour Court has considered the particular difficulties of evidence and proof of discrimination in several decisions. Recognising that discrimination may be unintentional or subconscious, the Court said in Portroe Stevedores and Nevin, Murphy, Flood (Determination No 051) that "...a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution...it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a "significant influence"..."

4.6 As referred to at 2.2 above, the advertisement for the post indicated the essential requirements were as follows:
Candidates shall on the latest date for receipt of completed application forms for the office:
(a) hold a recognised degree or equivalent professional qualification in engineering
(b) after attaining the degree or qualification referred to at (a) above, have at least seven years satisfactory experience of engineering work, including for a period of not less than four years, satisfactory experience in civil engineering work
(c) be capable of dealing efficiently with the various types of engineering work undertaken by a local authority, and
(d) possess a high standard of technical training and experience and of administrative experience.

4.7 As noted at 2.5 above, the interviewees were marked in accordance with the following criteria:
(i) Education/Qualifications: maximum marks 50, qualifying mark 25;
(ii) Management Experience/Skills, subdivided into (a) Interpersonal/Communication, (b) Leadership and (c) Ability to Schedule Work/Prioritise Resources: maximum marks 150, qualifying mark 75;
(iii) Knowledge, subdivided into (a) Current/Previous Working Environment, (b) Requisite Skills to Carry Out Duties of Senior Executive Engineer and (c) Role of Post: maximum marks 150, qualifying mark 75;
(iv) Relevant Experience (Range/depth): maximum marks 150, qualifying mark 75.

4.8 The Chair of the Interview Board gave evidence at the hearing that the assignment of marks had been agreed in advance by the members of the Board, in accordance with normal practice. She said there would have been a minimum qualifying mark agreed for possession of the required degree, and additional marks would be assigned for additional qualifications. She said that the Board would have agreed which area of questioning would be dealt with by which member, and said that she had no doubt that her two technical colleagues would have dealt with the areas of experience and knowledge. No notes were retained of the interview process, the Chair submitting that it was not common practice at the time.

4.9 The respondent provided the Interview Board's summary assessment of the interviewees and copies of the applications forms, being the only documentation in its possession relating to the interview process. By extrapolation from the application forms, it is possible to make reasonable estimates of the ages of the interviewees. The results are summarised here:

4.10 The complainant appears at number 6 in the table, and NQ after the total score signifies that the particular applicant was found to be not qualified by reason of failing to reach the qualifying score in one of the categories. The awarded marks are immediately striking in being apparently grouped. Candidates 1 to 4 were scored at 100 or over in relation to Knowledge, whereas Candidates 5 to 7 were given the minimum qualifying mark of 75. Candidates 1 to 4 were given over 100 Marks for Relevant Experience, with Candidates 6 and 7 given the minimum. Candidate 5 was disqualified in this category, with Candidates 6 and 7 disqualified in Management Experience/Skills. However, as stated previously, it is not my function to assess the applications to determine who appears to be the better candidate, and it would in any case not be within my competence to assess the knowledge and/or relevant experience of these candidates. Nevertheless, as no documentation exists relating to the interview process, the only material that I can objectively assess is the educational standard of the candidates.

4.11 From the applications and the CVs, the educational qualifications of the candidates are as follows:

4.12 The qualifying mark for education/qualifications was 25 out of a possible total of 50. Presumably a score of 25 was awarded for possession of "a recognised degree or equivalent professional qualification in engineering", the minimum educational qualification. It will be seen that the four youngest candidates were each awarded 35 marks by the Interview Board, even though Candidate 1 had attained first class honours and the other three had been awarded 2.2. Candidate 7 attained honours but was scored 32. The two candidates with Master's Degrees (the complainant and Candidate 5) received the highest marks, but Candidate 5 received a lower mark than the complainant even though he attained honours. It is not possible to identify a logical reasoning behind the award of marks in the category, and the respondent did not adduce any evidence to assist such identification.

4.13 In Portroe Stevedores, the Labour Court said that it had "previously found it necessary to emphasise that processes used in making selection for employment must be sufficiently transparent and examinable so as to satisfy the Court that the result was not tainted by discrimination. In [previous determinations] the Court found that the failure of the employer to maintain interview notes and assessment records was fatal to their defence against allegations of discrimination."

4.14 I note the submission of the Chair of the Interview Board, on behalf of the respondent, that it was not practice at the relevant time (January 2004) to maintain comprehensive interview notes. I am unable to accept this argument as a defence of the respondent's position. In April 2003, in National Museum of Ireland and Dr Anne O'Dowd (Determination No 033), the Labour Court said with regard to the failure to retain such notes "The Court has commented on this practice of destroying interview notes in the past and expects that if it has not ceased, it will cease in the future."

4.15 Having considered the evidence I am satisfied that the marks of the unsuccessful candidates have the appearance at least of being awarded in a cursory fashion, without adequate or appropriate consideration being given to their candidacies. In the absence of any form of evidence by the respondent that this is not the case, I am satisfied that the complainant has raised a prima facie case of discrimination on the age ground which the respondent has failed to rebut. It should be noted that it emerged at the hearing of the complaint that the main grievance felt by the complainant was that he had been deemed "not qualified" by the Interview Board in the category of Management Experience/Skills, in a context where he was already working in the equivalent grade. He was not actually maintaining that he should have been placed number one on the panel. In the circumstances, I am satisfied that an award of compensation is the appropriate redress in this complaint.

5. DECISION

5.1 Based on the foregoing, I find that the respondent discriminated against the complainant on the ground of age, contrary to the provisions of the Employment Equality Acts 1998 and 2004.

5.2 I hereby order that the respondent:
(i) pay the complainant the sum of €8,000 in compensation for the effects of the discrimination; and
(ii) that the respondent introduce open and transparent record keeping for Interview Boards so that the reasons by which they reach their decisions can be clearly identified.

_____________________
Anne-Marie Lynch
Equality Officer

23 May 2007