EMPLOYMENT EQUALITY ACTS, 1998 AND 2004
Equality Officer's Decision No. : DEC-E-2007-029
Parties
Mr John Ledwidge
vs
Dublin South East Money Advice and Budgeting Service
(Represented by O'Mara Geraghty McCourt Solicitors)
1. DISPUTE
The dispute concerns a complaint that Dublin South East Money Advice and Budgeting Service (MABS) 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 44 at the time, applied for an advertised position of Money Advisor with the respondent and attended for interview on 7th December, 2004. 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 22nd April, 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 30th January, 2007 and a hearing of the complaint was held on 1st March, 2007.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant states that he responded to an advertisement of 31st October, 2004 for the position of 'full time Money Advisor' with MABS. The respondent subsequently wrote to him on 22nd November, 2004 stating that the advertisement should have stated that the position was in fact a part-time position and enquiring if he wished to proceed with his application. The complainant continued with his application and was interviewed on 7th December, 2004. Following two telephone enquiries on his part on 16th and 23rd December, the complainant received a letter dated 13th December, 2004 on 23rd December, 2004 stating that he had been unsuccessful in the competition. The complainant suggests that the respondent's failure to tell him on the phone that he had been unsuccessful, even though a letter had been in existence from the 13th December, was indicative of embarrassment and evasiveness on the part of the persons he was talking to. The complainant quotes statistics from the Central Statistics Office Quarterly National Household Survey showing that in 2004 almost four times more females were in part-time employment than males. He alleges that the change in the status of the vacancy from full-time to part-time was a mechanism to make the position less attractive to male candidates in the hope that he would withdraw his application. The complainant states that he met all of the essential requirements for the position and suggests that when the Chairman of MABS saw from his CV that he sat his Leaving Certificate in 1979 he concluded that the complainant was mature in years and would not be considered suitable for the post.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent describes itself as a limited company funded entirely by the Department of Social and Family Affairs (the Department) which provides a free and confidential service for people with debt problems and money management problems. The respondent states that a part-time Money Advisor reached retirement age and that it sought permission from the Department to appoint a full time replacement and in the meantime went ahead and advertised the position as full-time. The respondent rejects the complainant's allegations of discrimination on the grounds of age and gender and states that 34 candidates applied for the advertised position, 22 males and 12 females. 10 male and 10 female candidates were short-listed for interview. It was only at that stage that the Department advised that funding was not available for a full-time Money Advisor post and the respondent had no option but to re-designate the post as part-time. Candidates were notified accordingly. 8 of the 20 short-listed candidates put their names forward for the interview stage, 5 males and 3 females. The complainant was ranked fourth at interview. The candidate ranked first at interview was male but turned down the position and the position was offered to the candidate ranked second who was female. Both of these candidates are younger than the complainant. The respondent in its submission provided copies of the interview notes in respect of the complainant's interview from the three member interview board. The respondent also furnished the interview notes for the candidates placed first and second at the hearing.
4.2 The respondent argued that the evidence shows that neither gender nor age were deciding factors in the selection process. The respondent states that the complainant has failed to adduce prima facie evidence of discrimination on either the gender or age grounds. The respondent also states that the complainant, in his original complaint form, refers to the date of the first alleged act of discriminatory treatment as the 13th December, 2004, the date on which he was notified by letter that he had been unsuccessful in the competition but seeks to broaden the scope of his complaint to earlier events by stating that the job was 'already designated to a young female applicant'. The respondent refers to the complainant's use of statistics on the number of males in part-time employment and rejects the implication that it sought to indirectly discriminate against the complainant on the grounds of his gender and adds that the complainant has failed to identify any 'apparently neutral provision' which 'puts persons of a particular gender at a particular disadvantage'. The respondent states that the reason why the complainant was not notified sooner of the outcome of the competition was that the Chairman of MABS, the person responsible for communicating the decision, was out of the country and that when the letter did issue it was caught up in the busy Christmas period for the postal system, aggravated by industrial action.
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 found no evidence that the change in status of the vacancy from part-time to full-time was anything other than a consequence of insufficient funding from the Department although I thought it ironic that MABS should be advertising a post for which it was unsure of funding. While the complainant made references to certain questions asked at interview and to questions which he felt could have been asked, I do not consider the comments of any relevance to his allegation of discriminatory treatment on the age or gender grounds and I am satisfied that there was no evidence of discriminatory questioning at interview. I have examined the interview notes for the complainant and the candidates placed first and second and am satisfied from the comments and markings that the respondent had objective reasons for its ranking of the candidates. A male candidate was placed first on the panel and turned down the position and clearly gender could not have been an issue in the complainant's failure to be appointed. While both candidates placed first and second were younger than the complainant I am satisfied that age was not a factor in deciding the ranking. I must conclude that the complainant has failed to adduce any prima facie evidence on which a presumption of discriminatory treatment could be based.
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
22 May, 2007