The Employment Equality Acts 1998-2007
Decision No:
DEC-E2008- 016
Mc Carthy
(represented by Barry Sheehan Solicitors)
-v-
Cork City Council
1. CLAIM
1.1 The case concerns a claim by Mr. Kieran Mc Carthy that Cork City Council discriminated against him on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Act in relation to appointment to the post of Heritage Officer.
2. BACKGROUND
2.1 The complainant applied for the position of Heritage Officer and he was unsuccessful in his interview. He submits that he had vast experience and extensive qualifications and that the respondent believed he was too young to hold the position. The successful candidate was older. He alleges that he was discriminated against on the age ground. The respondent denies the allegation of discrimination and submits that the appointment to the post was made on merit alone and not on any discriminatory ground whatsoever.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Director of the Equality Tribunal on 5 September 2005. On 16 March 2007, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. A submission was received from the complainant on 7 February 2007 and from the respondent on 21 March 2007. A joint hearing of the claim was held on 8 October 2007. An application to extend the time limit for referring a complaint was submitted and a Direction to extend time was issued on 21 November 2007. Final material requested from the respondent was received on 14 March 2008.
3. SUMMARY OF THE COMPLAINANT’S SUBMISSION
3.1 The complainant applied for the post of Heritage Officer in December 2004. On 26 January 2005, the Recruitment Officer (Mr. B) for the respondent wrote to the complainant informing him that his written application had been unsuccessful and that he would not be called to attend for interview. On 3 February 2005, the complainant wrote to Mr. B expressing his dissatisfaction with the decision and asking him to specify the precise grounds upon which the selection board had elected not to proceed with his application to interview stage. Mr. B replied stating that although the selection board had deemed him to be qualified, it found his postgraduate experienced “did not demonstrate relevant heritage experience of sufficient calibre at an appropriate senior level.”
3.2 Mr. B subsequently advised the complainant of the availability of an internal appeal of the decision not to call him to interview. On 24 February 2005, the complainant appealed the earlier decision of the selection board. By letter dated 28 February, the Personnel Officer, Mr. O’ H responded that the appeal had been successful and that the complainant should attend for interview on 4 March 2005. The complainant attended for interview and was rigorously examined on the various duties of the post as detailed in the particulars of the post furnished by the personnel department of the respondent. During the course of approximately 35 minutes interview, each of the three interview board members took notes of the complainant’s responses to the various questions put to him.
3.3 On 9 March 2005, Mr. B wrote to the complainant advising him that his interview had been unsuccessful. The complainant was subsequently provided with the interview results and the interview board comment sheet. The complainant submits that the marks awarded for performance at interview bear no resemblance to what actually took place and the complainant subsequently raised the matter with the Minister for the Environment, Heritage and Local Government. He subsequently advised that he had no jurisdiction to hear an appeal against the decision of the interview board.
3.4 The complainant contends that he was unfairly discriminated against by the respondent on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts 1998 and 2004 on two occasions. The first such occasion occurred on 26 January 2005 when the decision not to call the complainant to interview was communicated to him and the second occurred on 9 March 2005 when he was advised that his interview was unsuccessful. On both these occasions, the respondent sought to justify its decision on the sole basis that the complainant did not possess sufficient heritage experience. This apparent justification is without foundation and has been offered merely in an effort to disguise the real reason behind the decision not to award the post to the complainant. The complainant submits that the respondent believes that irrespective of his vast experience and extensive qualifications, his client is too young to hold such a position.
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
4.1 The respondent rejects that any of its actions in the matter of the complainant’s application related to his age. Indeed, the respondent was never aware of the precise age of any candidate as such information was not sought on the application form. The complainant in his statement produces absolutely no evidence whatsoever to suggest that age was a factor in any decision of the respondent.
4.2 Whilst the complainant alleges that the respondent discriminated against him on the grounds of age on two occasions, the first such allegation refers to the original decision not to call him for interview. The complainant was originally not short listed based on the information submitted on his application form. When he queried the matter, he was advised that the reason for this was that he “did not demonstrate relevant heritage experience of sufficient calibre at an appropriate senior level.” In submitting his appeal against that decision, the complainant made absolutely no reference whatsoever to his age nor did he even suggest that his age might have been a factor in the decision not to call him for interview.
4.3 The decision to allow the complainant’s appeal was based on the complainant’s submission and the question of his age was never referred to by him nor was it ever considered by Mr. O’ H, the Personnel Officer on appeal. Mr. O’ H submits that he had no reason to do so and he is still uncertain as to the complainant’s precise age and he never had any reason to ascertain it.
4.4 At interview stage, the board comment sheet stated that the complainant “would benefit from relevant experience in the heritage area” and this was based on the panel’s assessment of the candidate on foot of his interview and the evidence submitted to the panel in his application form. The interview panel was unaware of the complainant’s age and never sought that information nor considered it as a factor. The complainant’s complaint does not indicate in what way the respondent allegedly discriminated against him on the age ground and the Tribunal is requested to dismiss the claim.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the age ground in relation to appointment to the post of Heritage Officer. I will consider whether the respondent directly discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties. An issue arose at the hearing of this matter as to whether the complaint was referred in time and the complainant subsequently sought an extension of time. A Direction (DIR-E2007-014) to extend the time limit for referring the claim was granted on 21 November 2007 on the basis that reasonable cause had been shown as to why the complaint was not referred in time. The respondent did not appeal the Direction within the forty two days for appeal. Material in relation to the competition was provided by the respondent on 14 March 2008.
5.2 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides that:
…….. discrimination shall be taken to occur where-
a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds mentioned in subsection (2) (in this Act referred to as ‘the discriminatory grounds’
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),
Caselaw on establishing a prima facie case of discrimination
5.3 The Labour Court in the case of Flexo Computer Stationery Limited v. Coulter[1] stated:
“It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by the Court in Mitchell v Southern Health [2001] ELR 201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If those two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed.”
The Labour Court subsequently stated in DPP v. Sheehan[2]:
“What the complainant must establish is a factual matrix from which the Court may properly draw an inference that discrimination has occurred. There is no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies. However, an inference of discrimination can arise where, for example, a less qualified man is appointed in preference to a more qualified woman (Wallace v. South Eastern Education and Library Board [1980] IRLR 193). It can also arise from an unexplained procedural unfairness in the selection process.”
Shortlisting process
5.4 The complainant submits he was 28 at the time of the competition and that the successful candidate was between 5 and 10 years older than him. The complainant claims that he was discriminated against initially in relation to the shortlisting process when he was advised that he would not be called to interview. Candidates were shortlisted by reference to three criteria which were (i) qualifications, (ii) whether they had 3 years post graduate experience and (iii) relevant experience. The shortlisting process was undertaken by Mr. S who was a member of the Heritage Council and Ms. B, Senior Planner and the person to whom the Heritage Officer reports. Mr. H subsequently sat on the interview board. According to the shortlisting summary sheet, after the shortlisting process was concluded, nine people were called for interview. The complainant was advised by letter dated 26 January 2005 that his application would not be taken to the interview stage. No reason was given in that letter for the decision not to shortlist him.
5.5 The complainant subsequently sought the precise reasons upon which the respondent elected not to proceed with his application to interview stage. He was subsequently advised by letter dated 14 February 2005 that the shortlisting process consisted of a review by a selection board of each candidate’s application. He was advised that applicants were shortlisted on the basis of both qualifications and experience and that in relation to qualifications, he was deemed qualified but that in relation to post graduate experience, his application form did not demonstrate relevant heritage experience of sufficient calibre at an appropriate senior level. The shortlisting summary sheet indicates by means of ticking a box under each criterion that the complainant met the required standard in relation to qualifications and post graduate experience but that he had insufficient relevant experience. There is no further comment on the shortlisting summary sheet in relation to the reasons why candidates were shortlisted/not shortlisted as the case may be. The information in the letter dated 14 February 2005 appears to have been communicated to the complainant following discussion with the shortlisting board members and this may account for the discrepancy between what is recorded on the summary sheet and the contents of the letter dated 14 February 2005 to the complainant. In a case concerning a claim of discrimination on the gender and age grounds in a shortlisting process, the Labour Court has held that “ …. in absence of unfairness in the selection process, or manifest irrationality in the result, it will not seek to undertake its own assessment of candidates or substitute its views on their relative merits for those arrived at by the designated selectors….”[3] In this case, candidates were shortlisted according to three pre-determined criteria and in the absence of unfairness or manifest irrationality in the result of the shortlisting process, I will not proceed to undertake my own assessment of candidates. On the balance of probabilities, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground in relation to the shortlisting process for the post of Heritage Officer.
Interview process
5.6 The complainant was subsequently called to interview after he appealed the outcome of the shortlisting process. The interview board consisted of three persons, one of whom had previously sat on the shortlisting board. The respondent stated at the hearing that the decision to shortlist the complainant and call him for interview was based on administrative practicality in that an interview could be accommodated by the Board. This decision to progress the complainant’s application to the interview stage appears to have been made without reference to the merits of the complainant’s application. The person specification in relation to the post of Heritage Officer stated that candidates shall possess a relevant third level degree qualification and have a minimum of three years post graduate experience in a high level heritage related field. It gives examples of a degree in archaeology, earth/natural sciences, genealogy, planning and architecture as being relevant degrees. It also states that candidates shall possess good communication skills, good organisational and management skills, be enterprising, innovative and capable of working on his/her own initiative. It also states that knowledge of local authority structures would be an advantage.
5.7 I note that the successful candidate does not state the years that she completed her secondary education and it is therefore not possible to try to determine her age from her CV. I note also that the person who was placed number 2 on the panel completed his/her Leaving Certificate in 1994 whereas the complainant completed his Leaving Certificate in 1996. It is likely that the person who was placed second on the panel was one/two years older than the complainant. The respondent subsequently confirmed that the successful candidate was 33 years old at the relevant time. The complainant’s CV indicates that at the time of the selection process in 2005, he was a candidate with considerable research experience and was well published. He was also an experienced lecturer. The successful candidate’s CV indicates that at the time of the selection process in 2005, she had experience as a Zookeeper, a Technical Development Officer with a wind energy development and consultancy company and experience as an Environmental Development Executive with a community based rural development company. The complainant submitted that he is at a loss to understand how the successful candidate could be perceived as demonstrating relevant heritage experience of sufficient calibre at an appropriate senior level superior to that of his own. In this regard, I note that it is submitted on the successful candidate’s CV that the company with which she was employed at the time of the competition was involved in a number of heritage projects and produced an award winning heritage brochure.
5.8 At the interview stage, candidates were marked according to seven criteria. These were qualifications, relevant technical experience, communications/interpersonal skills, organisation and management skills, initiative, knowledge of role of the heritage officer and knowledge of local government. Six of the criteria are in line with the person specification for the post. The criterion of ‘Knowledge of the role of Heritage Officer’ was an additional criterion added and most marks were available for this particular criterion. The respondent submitted that the marking sheet was based on the standard marking sheet used in Local Government for professional grades level. It submitted that the interview board members deliberated amongst themselves after each candidate was interviewed. The complainant received a total of 335 marks out of 700 at the interview stage. The successful candidate received a total mark of 475. The selection criteria appear objective and seem to have been honestly applied in practice.
5.9 In this case whilst the complainant was 5 years younger than the successful candidate, the Labour Court has stated that “The existence of a difference on the grounds of age, marital status or family status between the two candidates does not of itself establish a prima facie case of discrimination.”[4] Whilst it may have been more prudent for the person who sat on the shortlisting board to reconsider his position on the interview board given that the complainant’s application was being progressed to the interview stage following the intervention of Human Resources Division, this factor in itself does not give rise to a presumption of discrimination on the age ground. In relation to the addition of the criterion of ‘Knowledge of the role of Heritage Officer’, I consider that it would not be unusual to expect interviewees to have a good knowledge of the role in respect of which they are applying and I note that background information on the post and the duties of the post are detailed in the ‘Particulars of the Post’ document prepared by the respondent in advance of the selection process. It is also the case that such a criterion might benefit someone in the role of Heritage Officer more than other candidates but it is not the case that the successful candidate was in such a role at the time of the competition. The Labour Court has stated “……. it is for the Court to decide in every case if the factual basis disclosed on the evidence is sufficient to raise an inference of discrimination.”[5] I have considered the documentation provided by the respondent in respect of the interview process including the interview notes recorded by the two of the interview board members in respect of the complainant and having done so, I am not satisfied that the complainant has established a prima facie case of discrimination on the age ground. In the circumstances and based on the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination in relation to the selection process for appointment to the post of Heritage Officer. His claim cannot therefore succeed.
6. DECISION
6.1 On the basis of the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 contrary to sections 8 of the Act in relation to appointment to the post of Heritage Officer.
_________________
Mary Rogerson
Equality Officer
23 April 2008