DEC-E2007-054 - Full Case Report

Byrne
(Represented by Conor Bowman BL, on the instructions of Murphys Solicitors)

AND

ESB
(Represented by Peter O'Brien BL, on the instructions of ESB Legal Services)

1. DISPUTE

1.1 This dispute concerns a claim by Mr Brian Byrne that he was discriminated against by the ESB on the ground of age, contrary to the provisions of the Employment Equality Acts 1998 to 2007, when he was not appointed to an upgraded position.

1.2 The complainant referred a claim to the Director of the Equality Tribunal on 8 April 2005 under the Employment Equality Acts 1998 to 2007. In accordance with her powers under section 75 of the Acts, the Director then delegated the case on 10 October 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 11 May 2007. Subsequent correspondence concluded on 6 June 2007.

2. SUMMARY OF THE COMPLAINANT'S CASE

2.1 The complainant, who was born in 1941, began work as a heating representative with the respondent in 1964. He says that he undertook an engineering technician course to improve his performance in his job and became a member of the Chartered Institute of Building Services. The complainant says that, until his retirement in February 2006, he worked as a key account manager dealing with energy audits for particular clients, assessing the usage of electricity and making recommendations as to how bills may be reduced. The complainant says he was on Level H, in a grading structure that ran from E to I. The complainant says that two new Level I posts were created in 2004, to be filled by upgrade, and that the new posts did not involve a change in work.

2.2 The complainant says that he and four others were eligible for consideration for the upgrades. He says that three criteria were taken into account for the upgrades: (a) length of service at Level H; (b) present performance; (c) future performance. He submits that he was at Level H for some five years at the time, and that he was more suited and better qualified than the other candidates. He points out that if he had been upgraded his salary would have increased by approximately €3,000 per annum, and there would have been a consequent effect on his pension entitlement.
2.3 The complainant says that the successful candidates were both qualified electricians with two to three years' service at Level H. One was aged approximately 48 years and the second was aged approximately 45 years. The complainant says that neither of those upgraded was as technically qualified as he was, and he says he has in the past been commended for his work. The complainant says that, unlike those upgraded, he was due for retirement a short time later because of his age. He says that the only reasonable and logical conclusion was that his failure to achieve an upgrade was due to his age and forthcoming retirement. He says that, if such is accepted to be the case, it is entirely contrary to the provisions of the Acts.

3. SUMMARY OF THE RESPONDENT'S CASE

3.1 The respondent denies that it discriminated against the complainant. It says that he was employed as a member of its Energy Services Officer (ESO) category at Level H. The respondent says that a review of the category was carried out jointly with representatives of the category and their trade union officials. As part of the review, two Level I posts became available.

3.2 The respondent says that, in making appointments to the Level I posts, a process was undertaken whereby the manager of each area was present at a series of meetings to represent his or her staff. It says the agreed criteria against which each individual was assessed were: (a) job performance in current and previous roles; (b) scope/scale of job with particular emphasis on any increased levels of responsibility due to re-organisation of work; (c) service in grade. The respondent says that following completion of the selection process, the complainant was not successful in being appointed to one of the Level I positions. It says that age was not a factor in the selection process.

3.3 The respondent acknowledges that once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent which must rebut the presumption of discrimination by providing evidence that it did not unlawfully discriminate. The respondent submits that an inference cannot be drawn merely from the fact that a successful candidate is younger, citing McCormick v Dublin Port Company (DEC-E2002-046) in support of this contention. 3.4 The respondent says that the complainant provides no additional evidence, other than a difference in age, which would shift the burden of proof. It notes that in his submission, the complainant says he was "one of the most suitable and qualified people for the Level I position." The respondent says that this indicates that there were other qualified applicants for the position, and also points out that the complainant has offered no evidence to support the statement. The respondent asks that the Equality Officer find against the complainant in this complaint.

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 to 2007. 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 gender ground, said "In order to establish a prima facie case of discrimination, the evidential burden is on the complainant to establish the primary facts on which they rely and to satisfy the Court that these facts are of sufficient significance to raise an inference of discrimination, thus shifting the burden to the respondent..." (Health Service Executive and Michael McGoldrick, Determination No EDA076). 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 respondent submitted the following details of the result of the selection process for the upgrades:

Service was scored by awarding 10 marks for more than five years' service, 5 marks for between three and five years' service and 0 marks for less than three years' service.

4.6 The respondent said that marks for performance and potential were awarded after discussion by managers. It described the process as a group exercise, whereby all of the managers discussed all of the candidates. There were eighteen ESOs to be considered, as upgrades to Levels G and H were also to be determined. The respondent said that the names of candidates were taken in order, and their performance and potential were debated. The respondent said that provisional scores were allocated at an initial meeting and challenged by those present. The matter was then reviewed a week later, and the initial scores re-considered. It was only when all present were satisfied that the correct result had been achieved that the list was submitted to the general manager for formal approval.

4.7 At the hearing of the complaint, the respondent submitted the original flip chart sheets used by the managers to discuss the candidates. It also submitted the following notes made of the discussion on the performance and potential of the complainant and his colleagues:

4.8 The complainant contended correctly that he had longer service than his colleagues, and this was appropriately scored. He also contended that he was better qualified than the other candidates. However, there was no qualification requirement for the upgrade, which is a matter for the respondent to decide. From the material provided by the respondent, it is evident that all candidates were evaluated and considered for upgrading. I cannot find that there was either unfairness in the selection process or manifest irrationality in the result, and I therefore 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, contrary to the provisions of the Employment Equality Acts 1998 to 2007.

_____________________
Anne-Marie Lynch
Equality Officer

21 September 2007