DEC-E2007-056 - Full Case Report

Toner
(Represented by PSEU)

AND

Department of Communications, Marine and Natural Resources

1. DISPUTE

1.1 This dispute concerns a claim by Ms Anne Toner that she was discriminated against by the Department of Communications, Marine and Natural Resources on the ground of age, contrary to the provisions of the Employment Equality Acts 1998 to 2007, when she was unsuccessful in a promotional competition.

1.2 The Public Service Executive Union (PSEU), on behalf of the complainant, referred a claim to the Director of the Equality Tribunal on 12 January 2004 under the Employment Equality Act 1998. Following an unsuccessful mediation process, and in accordance with her powers under section 75 of that Act, the Director then delegated the case on 26 January 2005 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. For operational reasons the case was re-delegated on 31 January 2006 to another Equality Officer, Anne-Marie Lynch. Submissions were sought from both parties, and a joint hearing was held on 8 February 2007. Subsequent correspondence with the parties concluded on 22 May 2007.

2. SUMMARY OF THE COMPLAINANT'S CASE

2.1 The complainant, employed as an Executive Officer in the Department of Communications, Marine and Natural Resources ("the Department"), attended an interview for promotion to Executive Officer (Higher Duties) and Higher Executive Officer on 10 November 2003, held following the issuing of the Department's Personnel Notice 73/03. She was 51 years of age at the time. She was unsuccessful in the competition and contends that her non-selection for promotion amounted to discrimination on the ground of age, in terms of section 6 (2) (f) of the Employment Equality Acts 1998 to 2007, and in contravention of section 8 of the Acts.

2.2 The complainant says that 23 candidates competed in the promotion competition. She says that eight younger candidates were successful and contends that this constitutes discrimination against her. The complainant says that from the table below (at paragraph 2.3) it can be clearly seen that there was a bias in favour of younger candidates. She says that seven out of the youngest 13 candidates were successful, whereas just one out of the oldest 10 was successful.

2.3 Age Profile of candidates at 26 September 2003 (closing date for applications):

2.4 The complainant says that the oldest successful candidate was aged 37 years. She says it is not a nice prospect to consider that your career advancement is over before you reach 40 years of age, and says this is a particularly bleak prospect in the context of serving up the age of 65 years. The complainant says that 28 years is a long time to serve without likelihood of further promotion.

2.5 The complainant submits that the age range of the candidates was as follows:

The complainant says that 53.84% of candidates aged between 25 and 35 years were placed on the promotion panel, whereas only 10% of candidates aged more than 35 years were so placed. She says, to put it at its starkest, 87.5% of promotions went to people aged between 25 and 35 years.

2.6 The complainant says that she was given a glowing recommendation by her first supervisor, who said "[The complainant] has single-handedly managed the Department's website over the past 18 months and in this role demonstrated excellent organisational, interpersonal, management and innovative skills. In addition she has a very good overview and understanding of the functions of all of the Department's business units. I believe she is well qualified for promotion and I have no hesitation in strongly recommending her." The complainant says her second supervisor endorsed this assessment, and made particular reference to the complainant having "shown creativity in proposing new ideas and approaches to the appearance of the website." The complainant says her formal assessment for promotion was "outstanding".

2.7 The complainant says an extraordinary feature of the competition was the wide disparity between the recommendations of her supervisors and the markings by the interview board. She says that she is clearly receptive to change, but received just 20 marks out of a possible 30 for this competency. She says she also received a relatively poor mark for the competency "Commitment to achieving quality results". The complainant says her supervisors had commented glowingly on the quality and value of her work, and assessed her as "outstanding". She says it has to be remembered that her first and second supervisors know her best when it comes to judging her work.

2.8 The complainant's union availed of section 76 of the Acts, using Form EE2, to elicit information from the Department regarding competition 73/03 and two previous competitions. The union sought details of the gender, service record and date of birth of all candidates in all three competitions. The union says the details obtained demonstrated that over the three competitions 26 candidates were aged 40 years or over, with five being successful. On the other hand, it says 30 of the candidates were aged 39 years or less and 16 were successful. The union says it is interesting to note that only two candidates over the age of 50 years have been promoted in three competitions and that they had barely been eligible for the competitions on service grounds. The union says that 76% of the promotions went to candidates aged between 25 and 39 years, while only 24% went to candidates aged over 40 years.

2.9 The union concludes that it is very clear that there was a consistent preference for younger candidates in the competition held under Personnel Notice 73/03. It says it is further clear that the complainant's overall experience and recommendations would justify her being placed on the relevant panel. Furthermore, the union says, that the marks allocated by the interview board are totally inconsistent with the assessment of "outstanding" by the complainant's immediate supervisors. The union says the results from the interview board are only explicable in terms of discrimination on the age ground by the Department.

3. SUMMARY OF THE RESPONDENT'S CASE

3.1 The respondent says that it is satisfied that the alleged discrimination on age grounds did not occur. It says that the Department has a long-standing and proud tradition of operating a policy of 100% competitive merit-based promotion. It says this policy has been in effect for over 10 years, and since then interview policies and procedures have been continually refined and improved to ensure that internal promotions are run to the highest standards and in accordance with best practice. The Department submitted extensive documentation describing its selection of and guidance given to interview boards.

3.2 With reference to assessments of candidates prior to interview, the respondent says that the first supervisor assesses performance in the current role, for which the complainant received "outstanding". The second supervisor assesses assignment potential of the candidate (in the higher grade) and the complainant was rated as "2 - well qualified". Of the successful candidates, four were rated by their second supervisors as "1 - exceptionally well qualified", and four were rated as "2 - well qualified". Of the unsuccessful candidates, the respondent says that four were rated as "3 - qualified: able to do the higher job adequately", nine (including the complainant) were rated as "2 - well qualified" and two were rated as "1 - exceptionally well qualified".

3.3 The respondent notes that the complainant considers it significant that she was rated highly, but says that she would have been unaware of the ratings of the other candidates. The respondent further notes that the union refers to a "wide disparity" between the complainant's assessment and the marks of the interview board, and it says that if the outcomes of promotion competitions were to be based on supervisors' assessments, there would be no point in holding interviews. The respondent says the interview board does not award marks based on supervisors' assessments, and points out that two unsuccessful candidates were rated more highly than the complainant.

3.4 The respondent notes that the union relies heavily on statistical data in its submission, and suggests that it has used this data to suit its own purposes in a somewhat misleading manner. The respondent says an example of this is the original request for information using Form EE2. This stated that 87.5% of successful candidates were born post-1970. In response, the Department pointed out that this was inaccurate and that one successful candidate had been born in 1970 itself and three had been born pre-1970. The respondent submits that if one interpreted post-1970 to mean post 31/12/70, then 50% of successful candidates were born post-1970. The respondent says that the union then indicated that it had intended to say that 87.5% of successful candidates were born post-1966. The Department suggests that this was an example of the union changing the way it used statistics to suit its own purposes.

3.5 The respondent says that the union's submission stated that "In all 8 persons younger than the complainant were successful and placed on the relevant panels." It says that the union omitted to point out that 91% of all candidates were younger than the complainant. The respondent refers to the union's comment that "It is not a nice prospect to consider that your career advancement prospects are over before you are 40 years of age." The respondent says that the union requested data on two previous competitions held in 2002. It says the union omitted to point out that five of the 13 successful candidates in those competitions were over 40 years of age.

3.6 The respondent concludes that it has in place professional policies and procedures regarding the running of competitions for promotion that are in line with best practice. It says these were applied in the case of the promotion competition arising out of Personnel Notice 73/03, and that it is satisfied that age discrimination against the complainant did not occur during the course of her interview for promotion in November 2003.

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 her on the ground of age contrary to the provisions of the Employment Equality Acts 1998 to 2007. Section 6 of the Act 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 disability ground (A General Practitioner and A Worker - Determination No EED062) said "It is now well settled that in cases of discrimination it is for the Complainants to prove the primary facts upon which they rely in asserting that they have suffered discrimination. If those facts are proved and they are regarded as sufficient to raise an inference of discrimination, the onus shifts to the Respondent to prove the absence of discrimination. In all cases the standard of proof is the normal civil standard; that is to say the balance of probabilities." 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 promotion candidates. In the case Director of Public Prosecutions and Robert Sheehan (Determination No 0416), the Labour Court said "...the responsibility for assessing the merits of the candidates for the disputed post was deputed to a selection board consisting of members whose qualification for the task assigned to them is beyond question. In these circumstances and in the absence of unfairness in the selection process or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the selection board."

4.5 The essence of the complainant's case is that her promotion assessment was so positive and her experience so extensive that she should have been promoted. She claims also that the marks awarded by the interview board are inconsistent with her promotion assessment, and in more general terms that there is a consistent preference for younger candidates in the respondent Department.

4.6 Regarding the complainant's promotion assessment, it should be noted that the union claimed that she had been assessed as an "outstanding" candidate. This is not strictly the case, as she had in fact been assessed as "outstanding" in her current role and as "well qualified" for promotion. From evidence provided by the respondent, I am satisfied that six candidates were rated as "exceptionally well qualified" for promotion, and that two of those were unsuccessful. It is clear that the assessments by supervisors did not directly correlate with success in the competition for any of the candidates.

4.7 The union argued strongly that there should be a connection between assessments and promotion success, and cited the Labour Court determination in the case of Revenue Commissioners and O'Mahony, Smith, Lovett and O Tuama (Determination No 033) in support of its contention. In that case, the Court found it difficult to accept the respondent's submission that promotion assessments were not taken into account, because they had been found to be inflated and unreliable. The Court said that the notes to the assessment form made it clear that it formed an important part of the decision making process and should be completed with care. The Court noted that the respondent had not pursued the matter with those who completed the assessments. The Court did not accept the explanations offered by the respondent, and, in combination with other procedural inadequacies, found that discrimination had occurred.

4.8 In this complaint, the respondent did not seek to impugn the value of the assessments. It merely said that they are not scored by the interview board. The respondent subsequently pointed out that it had confirmed with the Public Appointments Service that it does not award marks for assessments. I am satisfied from evidence submitted in other complaints involving government departments that this practice is widespread in the civil service. It should be noted also that, even if the assessments were scored by the interview board, the complainant was by no means the most highly rated candidate. In the circumstances, I do not ascribe any discriminatory motive or outcome to the failure to take account of the assessments.

4.9 The union laid much stress on the fact that the oldest successful candidate was aged 37 years. That in itself cannot constitute evidence of discrimination, as it is merely a statement of fact and does not of itself demonstrate anything. As Quirke J said in Davis v Dublin Institute of Technology (High Court, 2000, unreported) "In cases where discrimination on grounds of sex is alleged to have occurred contrary to the provisions of section 2 (a) of the 1977 Act the fact that there is a gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation...A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidates "together with" a gender difference may give rise to such a requirement...". The complainant in this case has not adduced any evidence of a significant difference in experience and qualifications between herself and the successful candidates, and she actually had less service than five of them.

4.10 It appears to me that finding the simple failure of any particular age group to be successful in any particular competition to automatically demonstrate discrimination would have the effect of imposing unnecessary difficulties on interview boards. The result may be that boards would feel constrained to match the percentage of successful candidates of any particular age group with the percentage of applicants in that age group. While the Acts provide at section 33 that positive action may be permitted in certain circumstances, this is clearly not what was intended.

4.11 To ascertain whether the respondent had demonstrated a general propensity to discriminate against older candidates, I examined the data submitted by the respondent relating to two earlier competitions. In the competition arising from Personnel Notice 04/02, there was one candidate aged over 50 years. This candidate was successful, giving a success rate of 100%. In the competition arising from Personnel Notice 73/02, there were two candidates aged over 50 years. One of these was successful, giving a success rate of 50%. As has been stated, there were two candidates in this age group in competition 73/03, neither of whom was successful.

4.12 Amalgamating the results of all three competitions gives the following results:

It will be seen that, statistically, the changes of promotion decline as the candidate ages, until the age group 51 to 55 years is reached, when it improves dramatically. Given the exceedingly small numbers of candidates in the older age groups, I am unable to attach statistical significance to the data. In all of the circumstances of this case, I find that the complainant has failed to establish a prima facie case of discrimination.

5. DECISION

5.1 Based on the foregoing, I find that the respondent did not discriminate against the complainant on the ground of age, contrary to the provisions of the Employment Equality Acts 1998 to 2007.

_____________________
Anne-Marie Lynch
Equality Officer

1 October 2007