FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : DEPARTMENT OF ENVIRONMENT, HERITAGE & LOCAL GOVERNMENT - AND - DENIS O' HIGGINS DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal under Section 83 of The Employment Equality Act, 1998 - DEC-E2007-043.
BACKGROUND:
2. A Labour Court hearing took place on the 29th February, 2008, in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's determination:-
DETERMINATION:
This is an appeal by the Mr. Denis O’Higgins (the Complainant) against the decision of an Equality Officer in a claim alleging discrimination on the age ground by the Department of Environment, Heritage and Local Government (The Respondent). He claimed that he was discriminated against when he was not selected for promotion in February 2004, his non-selection amounted to discrimination on grounds of age, in terms of Section 6(2)(f) of the Employment Equality Act 1998 and 2004 (The Act) and in contravention of Section 8 of that Act. The Equality Officer found against the Complainant.The complaint relates to the following: -
-He alleged that he was discriminated against on the basis of his age when reference was made to his length of service with the Respondent in an assessment undertaken as part of a competition for promotion to District Conservation Officer (DCO) in 2004. He alleged that this assessment was used to influence the interview panel with the result that he was not selected for the post.
-He also alleged that the Department’s change of policy reducing the service requirement for the promotional position from five years to three years, discriminated against him on the basis of his age.
-And furthermore, he alleged that the Department has a policy or practice, which discriminates against older candidates, i.e. over 50 years of age, and this policy directly, discriminated against him, as he was aged 54.
Summary of the Complainant’s case:
The Complainant read into the record the background details of his complaint as reported by the Equality Officer in her decision.
The complainant, who was born on 4th August 1949, has been employed as a Conservation Ranger with the National Parks and Wildlife Services (NPWS) since 1980. The NPWS was under the aegis of the Department of Arts, Heritage, Gaeltacht and the Islands up to June 2002, following which responsibility for the Service transferred to the Department of the Environment, Heritage and Local Government.
The complainant claims that he was discriminated against in relation to an assessment for promotion to District Conservation Officer (DCO) in 2004. The interview was scheduled for Monday 24th February, and on Thursday 19th (one working day beforehand) he was absent from home. He told the Court that an assessment of his suitability was sent to his fax in the private area of his home, and when he returned home he found the document openly displayed for all to read. This document, signed by his first supervisor (DCO) and his second supervisor (the Regional Manager), purported to be an assessment for his suitability for promotion. He described it as “false, degrading and devoid of any positive content”, and says it was totally at variance with his most recent assessment by the DCO.
The complainant told the Court that his supervisors placed him in the least favourable position in all categories, “No opinion”. UnderAny additional commentsthey stated “As [the complainant] has not had a single case in Court in his entire service (24 years) I think his ability to advise and supervise staff would be found wanting.”The complainant said that this false and vexatious statement emphasised his years of service thereby highlighting his age.
He contacted Personnel by telephone and by fax on Friday 20th February 2004 to request that this misleading document be withdrawn from the interview board. However, it was not withdrawn. The complainant says the assessment influenced the interview panel to his disadvantage, and that the Chair confirmed at the interview she had already read the assessment.
Furthermore, the complainant told the Court that only weeks before the interview, a reduction of the service requirement from five years to three years was imposed and this adversely impacted upon him as it facilitated younger members of staff to apply.
The Complainant submitted that the NPWS had a policy or practice whereby people over 50 years were not promoted and in support of this contention he outlined the following age categories for appointment to DCO positions:
Age Group | Number of applicants | Number successful (Percentage) |
25-30 | 10 | 6 (60%) |
31-35 | 4 | 2(50%) |
36-40 | 11 | 10(91%) |
41-45 | 8 | 6(75%) |
46-50 | 7 | 6(86%) |
51-55 | 4 | 0(0%) |
56-60 | 3 | 0(0%) |
61-65 | 1 | 0(0%) |
He pointed out that the last three categories, all older than 50 years, were the only categories in which there was 100% failure rate, whereas the other categories all enjoyed a success rate of 50% and over.
Summary of the respondent’s case:
The respondent read into the record a summary of its position as reported by the Equality Officer in her decision.
The respondent denied the complainant’s claim of discrimination, it stated that it was fully aware of its obligations under equality legislation and it constantly reviews policies and procedures to ensure ongoing compliance. In explanation of the structure of NPWS, the respondent said that the complainant’s grade, Conservation Ranger, reports to a District Conservation Officer (DCO). S/he in turn reports to a Regional Manager, who reports to a Divisional Manager.
The respondent stated that its policy in relation to assessments for promotions is that they must be seen and signed by candidates in advance of an interview. It says the complainant’s DCO was first supervisor for two candidates in the competition, and he forwarded both assessments to the Regional Manager on 11 February 2004. The Regional Manager was second supervisor for nine candidates in total, and he concluded his evaluations on 19 February 2004. The respondent stated that, with the tight timeframe, the only way the assessments could be seen by the complainant in advance was by faxing the documents. The respondent says this is a fairly routine method of communication between line manager and their staff working in the “field”.
The respondent stated that the assessment contained the views of the complainant’s two immediate line managers as to his ability and suitability to carry out the duties of a DCO. It acknowledges that the overall assessment was poor, but points out that in response to a question on suitability for promotion both managers indicated the complainant “may qualify in time” for promotion. The respondent says that, under the additional comments, the DCO acknowledged that the complainant had ability, but questioned his capability to perform the duties of DCO, including supervising staff. The respondent said this was the DCO’s assessment, having been the complainant’s line manager since 1997. The respondent accepts that the statement that the complainant had not had a single court case in his entire service was incorrect, but it says it was the DCO’s honest belief at the time he completed the assessment.
The respondent notes that the complainant refers to a previous positive assessment of his performance by the DCO, but points out this took place in 1998, some five years earlier. It says that the DCO had at that time taken over as the complainant’s line manager and was anxious to encourage an improvement in his performance and to build a good working relationship, as a consequence, he was being generous in his assessment of the complainant. The DCO appended a remark to that assessment stating, “[The complainant]has been lacking in motivation due to a perceived grievance, which I feel we are overcoming.”
The respondent stated that the complainant was fully aware prior to submitting his application for promotion, that there were serious questions regarding his work performance. It said that an assessment in August 2003 was poor to the extent that it was decided that the payment of his increment would be withheld. The respondent acknowledged this did not actually happen, as the complainant had already received the maximum point on the incremental scale and was not eligible for the first long service increment. Nonetheless, the respondent says the assessment clearly records performance issues, the complainant being rated“below average”on all the criteria.
The respondent said its policy is that interview boards do not have sight of promotion assessments until after the interview process is completed and marks have been awarded. There were no marks awarded for assessments and are used only as guidance for the interview board. The respondent informed the Court that the Chair and the interview board members confirmed that they had not seen the assessments before the interviews, and that candidates’ marks were not changed after the assessments were seen. The respondent also points out that the assessment seen by the interview board included the complainant’s comments expressing his clear disagreement with the assessment.
In relation to the allegation that the complainant’s years of service were highlighted in the assessment, the respondent said that it was the complainant who brought this matter to the attention of the interview board. In his application form he referred to “my 23 years as a Ranger”. The respondent points out that the application form for the competition did not ask candidates to include their date of birth. It said this was intentional, as it was aware of its obligations in this area. It says the issue of equality is one of the areas dealt with in briefing interview boards in advance of competitions. It says its policy is very clear and it is totally satisfied that the complainant’s age was not considered in determining his suitability for promotion.
The respondent said that suitability for promotion to DCO was determined solely on performance at interview. It provided interview training for all candidates, particularly to assist those who might not have had recent experience of interviews. The respondent’s records show that the complainant did not attend the training, although he did indicated an intention to do so. The respondent said that 45 candidates were interviewed and 32 were deemed suitable. A panel of 30 was established and all were offered promotion. The respondent says that, following a later lateral transfer; a vacancy arose in a particular location that had already been offered to all panel members. Following discussions with IMPACT, a reserve panel was established consisting of the two remaining suitable candidates. The vacancy was offered to number one on the reserve panel, aged 54 years on 25th February 2005. It was declined on the same day and then accepted by number two on the panel, aged 45 years.
The respondent notes the complainant’s comments about the “imposition” of a reduction in service requirement from 5 years to 3 years. It said the change came about as an agreed position with the union. Under Sustaining Progress, eligibility for promotion in the civil service will generally be two years’ service. A three-year service requirement was seen as an interim step, and the complainant’s grade was notified by the Impact Grade Representative on 22nd January 2004 that “after widespread consultation the executive voted to adopt three years.”
Burden of Proof
The allocation of the probative burden in discrimination cases is now determined by Section 85A of the Employment Equality Acts 1998 and 2004. This Section gives legislative effect in domestic law to Directive 97/80 EC on the burden of proof in cases of gender discrimination and to Article 10 of Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Education.
This Section provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be presumed, it is for the Respondent to prove the contrary. The test for determining if the burden of proof shifts to the Respondent was formulated by this Court inSouthern Health Board v Mitchell[2001] E.L.R. 201, Here the Court set out the test, as follows:
- The first requirement of Article 4 of the Directive is that the claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to provethat there was no infringement of the principle of equal treatment.
This test has been consistently applied by this Court in cases under the Acts.
Conclusions of the Court
The primary facts asserted by the Complainant are that, reference was indirectly made to his age in a negative assessment form used as part of the selection process for the disputed post; NPWS had a policy/practice of not promoting people over aged 50 years of age and the service criteria for the disputed post was reduced from five years to three years, thereby benefiting younger candidates.
This Court has consistently taken the view 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 Complainant was discriminated against on any of the grounds outlined in the Act.
Comment on Assessment Form
The complainant held that the false and misleading comment on his assessment form, completed by his line manager Mr. H, indirectly referred to his age as it highlighted his length of service “As [the complainant] has not had a single case in Court in his entire service (24 years) I think his ability to advise and supervise staff would be found wanting.”The Respondent accepted that the statement was incorrect. The Court was provided with a copy of a letter dated 16th January 2006, from Mr. H to the complainant, which stated that it had come to his attention that the complainant had been involved in 3 separate court prosecutions in 1987 and accepted that this contradicted the statement he made on the assessment form.
The Court noted that the application form did not ask for details of candidates’ age or date of birth. However, the complainant himself included a reference on the form to“my 23 years as a Ranger”.The Court accepts that both the assessment form ‘comment’ and the application form ‘remark’ could be considered as a reference to one’s age. Mr. H in his evidence told the Court that he deliberately gave the complainant a negative assessment as he considered him totally unsuitable for the promotion. Mr. G, Regional Manager and Mr. H’s line manager also signed the assessment form. In his evidence, Mr. G told the Court that he checked the contents of the assessment form with Mr. H as in all his years he had never come across a more negative assessment. The complainant told the Court that 2 out of 3 members of the interview panel knew him, and would have known his approximate age.
Taking all these factors into account the Court cannot accept that the ‘comment’ made by Mr. H on the assessment form infers discrimination on age grounds. At the time, he genuinely believed it was a true statement. Mr. H gave evidence of the complainant’s prosecution record and told the Court that in comparison with other Rangers, his record was very low, and he had no cases since 1987. He told the Court that law enforcement was a major part of a Ranger’s work and he would expect a Ranger to have a number of prosecutions every year. Mr. H became the complainant’s District Officer in January 1997. In 2004 when he was completing the assessment form he genuinely believed that the complainant had never had any prosecutions and in any effect due to his poor work record Mr. H said that he had deliberately submitted a very negative assessment to ensure that he would not be successful.
NPWS’ Policy/Practice of not promoting over 50 year olds
The complainant produced a table to illustrate the ages of those who applied for the position as DCO in February 2004 and the ages of those who were successful. At the request of the Court, the respondent was asked to produce information on internal promotions for a period of four years prior to the date of claim, in order to examine the complainant’s contention of a policy/practice on the part of the respondent to discriminate on age grounds.
Having examined the information on the ages of those who applied and were successful in being placed on a panel for promotion and/or those offered promotional positions within the NPWS in the four-year period in question, the Court found as follows:
-In the four year period prior to the claim, there were 52 internal promotional competitions held: -�144 applicants were over the age of 50, of which 44 were offered promotions.
�377 applicants under the age of 50 years of which 118 were offered positions.Therefore, just over 30% of over 50 year olds were successful, compared to just over 31% of under 50 year olds who were successful.
Based on these findings, the Court does not accept the complainant’s contention that NPWS had a policy/practice of not promoting over 50 year olds.
Reduction in service requirements for internal competitions
The Court notes that the reduction in the service requirement from five years to three years came about following an agreement reached between the Department and IMPACT Trade Union as part of an interim step at national level to reduce eligibility for promotion for civil servants. In such circumstances, the Court does not accept that this action can be considered as a factor to support his contention that he was discriminated on the grounds of his age.
Findings of the Court
The complainant bears the burden of establishing aprima faciacase from which discrimination can be inferred.
Having examined the submissions and the witness testimony, the Court is satisfied that the above matters do not raise a presumption of discrimination and are not sufficient to establish aprima faciecase of discrimination. Therefore, the Court concurs with the findings and Decision of the Equality Officer and disallows the appeal.
Determination
The Court therefore finds that the Appellant was not discriminated against on the grounds of his age in breach of Section 6(2)(f) of theEmployment Equality Act, 1998.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th April, 2008______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.