DEC-E2008-064 - Full Case Report

Equality Officer’s Decision No:  DEC-E/2008/064

Parties

Rabbitt

(Represented by  IMPACT)

And

HSE Dublin/Mid-Leinster Area

1.         DISPUTE

           This dispute involves a claim by Mr. John Rabbitt that that he was discriminated against by HSE Dublin/Mid-Leinster Area on grounds of gender and age, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts, in respect of (i) selection competitions for internal promotion in 2001, February/March, 2005 and April, 2006 and (ii) the respondent’s failure to assign him authorisation to perform civil marriages until 2002.

2.         BACKGROUND

2.1      The complainant commenced employment with the respondent as a Grade III (Clerical Officer) in 1972 and was assigned to the Registration of Births, Deaths and Marriages Office in Mullingar in April, 1983. He was unsuccessful in a number of competitions for internal promotion between 2001 and 2006 and contends that he was discriminated against on grounds of gender and age on each occasion. He adds that between 1994 and 2002 a number of less experienced, younger female colleagues were authorised to perform civil marriages and he was not assigned such authorisation until 2002. He contends that this also constitutes discrimination of him on grounds of gender and age contrary to the Acts. The respondent rejects the assertion that it discriminated against the complainant at all and notwithstanding this assertion it contends that certain aspects of his complaint are out of time as they were not referred to this Tribunal within the timelimit prescribed at section 77 of the Acts

2.2      The complainant referred two separate complaints under the Employment Equality Acts, 1998-2004 to the Equality Tribunal on 16 August, 2005 and 5 September, 2006 respectively.  In accordance with her powers under the Acts the Director delegated the complaints to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaints commenced on 14 March, 2007, the date the complaints were delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 9 October, 2007 and 14 December, 2007. A small number of points arose which required further clarification and gave rise to correspondence between the Equality Officer and the parties for some months.

3.         SUMMARY OF COMPLAINANT’S CASE

3.1      The complainant commenced employment with the respondent as a Grade III (Clerical Officer) in 1972 and was assigned to the Registration of Births, Deaths and Marriages Office in Mullingar in April, 1983. In January, 1989 he commenced working in a job-sharing capacity. In August/September, 1999 he attended at interview for a Grade IV vacancy and was unsuccessful. The final appointment from this competition was made in 2001 and the appointee was a younger woman. The complainant states that he had fourteen years more experience than the appointee and submits that he was better qualified for the position. He contends therefore that this constitutes less favourable treatment of him on grounds of gender and age contrary to the Acts. The complainant further contends that between 1994 and 2002 five of his female colleagues who were the same grade as him (Grade III) were authorised to perform civil marriages. He contends that he had more experience than each of these colleagues and he was not authorised to perform civil marriages until 2002 - a role which he performed until 2005. He submits that this is further discrimination of him on grounds of gender and age contrary to the Acts.  The complainant submits that these incidents represent the start of a pattern of discrimination against him which has manifested itself since 2001. He did not refer complaints to this Tribunal at the time because he was unaware of its existence.

3.2       The complainant states that following agreement between the respondent and his trade union in 2001, a revised grading structure emerged in the Civil Registration Area. This process resulted in a number of competitions for promotional posts. The complainant applied and attended interview for posts at Grade IV, Grade V and Grade VI levels in the early months of 2005. He was successful in the competition for the Grade IV post and was appointed to that grade on 1 May, 2005. He was unsuccessful in both the other competitions. The complainant states that at the time of the interviews he had 24 years experience at Grade III, fifteen of which was in the Registration of Births, Deaths and Marriages Office. He contends that he had significantly more experience than all the candidates empanelled following interviews for the Grade V posts (February, 2005) and submits that this constitutes discrimination of him on the grounds cited. The complainant makes similar assertions in respect of the interviews held in March, 2005 in respect of a Grade VI post – the successful candidate also being a younger female.

3.3      The complainant attended at interview for another post at Grade V level in April, 2006 and was again unsuccessful. He contends he had significantly more experience than the successful candidate, as well as those empanelled above him and was therefore better qualified for the post than the appointee – who was a younger female. He submits he was therefore treated less favourably on grounds of gender and age. He adds that the criteria across which the candidates were assessed in this competition were expanded over those applied in the previous competition (February, 2005). The complainant contends that this change impacted on his ability to obtain a fair interview, particularly under the heading of Knowledge and submits that the respondent made a deliberate decision to alter the process in this way so as to damage his prospects of success in the competition.

4.         SUMMARY OF RESPONDENT’S CASE

4.1      The respondent rejects the complainant’s assertion that it discriminated against him at any time during his employment with it. It states that the selection processes in respect of the three impugned competitions were conducted in a fair and objective manner without reference to the age and/or gender of the candidates. It submits, in the first instance, that the elements of the Mr. Rabbitt’s complaint which refer to (i) the competition for appointment to Grade IV following the 1999 competition and (ii) his non-authorisation to perform civil marriages until 2002, are out of time. It argues that these are stand alone issues and should have been referred within the timelimit(s) prescribed at section 77 of the Acts.

4.2       The respondent submits that the selection process operated in respect of the Grade V and Grade VI competitions in February and March, 2005 were conducted in a fair and objective manner. As regards the Grade V competition it states that the criteria across which all candidates were assessed were set out in the Job Description for the post - which issued to all applicants. The composition of the Interview Panel was recommended by the Recruitment Manager, approved by the HR Director and signed off by the Chief Executive Officer. Eight candidates were interviewed – the complainant and seven females and four of the female candidates were empanelled. The Interview Panel formed the opinion that the complainant did not demonstrate the necessary skills to perform the duties attached to the post to a satisfactory level.

4.3       The respondent states that the composition of the Interview Panel for the Grade VI competition in March, 2005 was selected in the same way as outlined above. The Panel members met on the morning of the interviews and went through the Job Specification for the post (this had also been furnished to all applicants). The Panel reduced the various competencies, skills and behaviours set out in the Job Specification into four criteria of – Knowledge, Organisational Skills, People Management and Customer Focus across which the candidates were assessed. Three candidates were interviewed, the complainant and two female. One of the females was appointed to the post. The Panel were not satisfied that the complainant demonstrated sufficient competency under the criteria of Organisational Skills and People Management. The respondent states that it held a further competition for vacancies at Grade V in April, 2006. It adds that the composition of the Interview Panel was processed in the same manner as outlined above. The respondent states that by this time it had secured a recruitment licence from the Commission for Public Service Appointments which permitted it to recruit its own staff directly but required it to ensure that there was a clear link between the Job Specification (which was again furnished to applicants) and the competencies across which candidates were assessed (in accordance with the Code of Practice issued by the Commission). In that regard the Interview Panel decided prior to the interviews commencing that candidates would be assessed across six predetermined criteria as follows Knowledge of Registration, Customer Care, Managing Individual and Team Performance, Communication Skills, Decision Making, Organisational Skills and Interpersonal Skills. Twenty-one candidates were interviewed –the complainant and twenty females. The complainant was placed sixth on the Panel. The respondent submits it has demonstrated that the impugned competitions were conducted in an  fair and objective manner and rejects the allegations it treated the complainant less favourably of the grounds cited.

5.         CONCLUSIONS OF THE EQUALITY OFFICER

5.1       The issues for decision by me are (i) whether or not  certain elements of the complainant’s claim was referred within the statutory timelimit and therefore validly before the Tribunal for investigation, (ii) if so, whether or not the alleged treatment constitutes discrimination of the complainant on grounds of gender and/or age in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts and (iii) whether or not the respondent discriminated against the complainant on grounds of gender and/or age in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts when it failed to promote him following three separate competitions between February, 2005 and April, 2006. In reaching my decision I have taken into consideration all of the submissions, both oral and written, made to me by the parties as well as the evidence given by witnesses.

5.2      Section 77(5) of the Employment Equality Acts, 1998-2004 provides as follows:

“(a)      Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b)        On application by a complainant the Director… may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly”

The Acts therefore require a complaint to be referred, in the first instance, within six months of the most recent occurrence of the alleged discrimination. That period can be extended by the Director to an absolute maximum of twelve months in certain circumstances. The events mentioned by the complainant took place in August/September, 1999 (in respect of the competition to Grade IV) and between May, 1998 and May, 2000 (in respect of the non-authorisation to perform civil marriages). I am satisfied that each of these matters are stand alone elements of Mr. Rabbitt’s complaint are have no link with the alleged acts of discrimination in 2005 and 2006. The complainant did not refer a complaint to this Tribunal at those times (because he was unaware that the Tribunal existed). His lack of knowledge as to the extent of his statutory rights is this regard cannot be considered sufficient to extend the present claim of discrimination so as to bring those elements within the ambit of my investigation. I find that both these elements were not referred within the statutory timelimit prescribed at section 77(5) of the Acts. They are not therefore validly before the Tribunal and they will not form part of my investigation.

5.3      Section 85A of the Employment Equality Acts 1998 and 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In Davis v Dublin Institute of Technology[1] Quirke J concluded that “a significant difference between the qualifications of the candidates together with a gender difference” may give rise to a prima facie case of discrimination. This principle applies equally to the other eight discriminatory grounds protected by the Acts. I shall deal with the competition for promotion to Grade V (February, 2005) in the first instance. The Internal Notice for the post stated that candidates “were required to have good level education and two years’ experience relevant to the post…”. At the time the complainant had twenty-one years’ experience as a Grade III in the Civil Registration Area and was aged 52 years. Four female candidates were empanelled. The following is an analysis of their experience -

Two of the candidates are younger than the complainant and two are older. I am therefore satisfied that there is no prima facie case of discrimination on the ground of age established. There is no significant difference in experience between the complainant and Candidate Numbers 2 and 4. Therefore I find that no prima facie case of discrimination on the ground of gender in respect of those candidates is established. However, I consider the difference in experience of the complainant when compared to that of the remaining two candidates to be significant and  I am satisfied that a prima facie case of discrimination on the gender ground has been established as regards those candidates. Consequently, it falls to the respondent to rebut the inference raised.

5.4      I shall now examine the competition for the Grade VI post (March, 2005). The Internal Notice for the post stated that candidates “were required to have good level education and five years’ experience relevant to the post…”. At the time the complainant had twenty-one years’ experience as a Grade III in the Civil Registration Area and was aged 53 years. The successful candidate was female and seven years younger than the complainant. At the time of the competition she had 26 years experience and had been a Grade V (acting and substantive) since January, 2002. She also had been a Grade IV for eighteen months prior to that. I am satisfied that her experience surpassed that of the complainant and a prima facie case of discrimination has not been established in this instance.

5.5             The final competition which forms part of the complaint was for a vacancy at Grade V which was held in April, 2006. The complainant was placed 6^th on a Panel behind five female candidates, all of whom were younger than the complainant. Similar service and other qualifications to those required for the previous Grade V competition applied. The following is an analysis of the experience of those empanelled above the complainant –

It is clear from the foregoing that the complainant had considerably more service than any of the candidates placed higher than him on the Panel. I note that the vacancy was in the respondent’s  Births, Deaths and Marriages Section in Longford. I further note that all of the complainant’s service in Mullingar was in that area and that none of the other candidates had any experience of that area of work. Consequently, I am satisfied that the complainant has established a prima facie case of discrimination on grounds of gender and age in respect of this competition and the burden shifts to the respondent to rebut that inference.

5.6      The respondent is required to provide a convincing non-discriminatory explanation for what occurred which must be sufficient to satisfy the Tribunal, as a matter of probability, that the manner in which the selection processes were handled and conducted was objective and was in no way tainted by bias on either of the discriminatory grounds cited.  Since the facts necessary to prove such an explanation can only be in the possession of the respondent, this Tribunal should expect cogent evidence to discharge the burden of proof placed on it[2]. I shall deal, in the first instance, with the competition for Grade V which was held in February, 2005. I am satisfied that the Interview Panel was convened in an objective fashion (as detailed by the respondent), in accordance with best practice and that it had both male and female members. The members of the Panel were experienced interviewers and were briefed by the respondent HR representative on the morning of the interviews. The Panel evaluated candidates over four pre-determined criteria which were included in the job specification for the post – a copy of which was furnished to each candidate (the complainant confirmed he received this document at the start of the process. In addition, the complainant stated in the course of the Hearing that he was not asked any question at interview which he considerer to have discriminatory undertones. The respondent was unable to furnish any contemporaneous notes of the interview, although a member of the Interview Panel attended the Hearing and gave evidence. The absence of interview notes has been commented on many times by this Tribunal and the Labour Court. Such an absence makes its extremely difficult for the respondent to discharge the burden placed on it, although the failure to make and retain such notes, is not of itself, fatal to the respondent’s case. The evidence given by Ms. Q, the Interview Panel member who attended the Hearing, was forthright and credible. Her clear recollection was that she questioned candidates on the criteria entitled “Core Competencies” and “Special Competencies” and the complainant failed to demonstrate that he possessed the necessary skills to carry out the post under those categories. In Dublin Institute of Technology v A Worker[3] the Labour Court held "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 sex or marital status of the complainant or the appointee influenced the decision of the Board.”. On the evidence presented I am satisfied, on balance, that the respondent has discharges the burden of proof required of it.

5.7      I shall now examine the second competition for Grade V promotions held in April, 2006. I am satisfied that the respondent again convened the Interview Panel in an objective fashion (as outlined at paragraph 5.6 above), that it comprised males and females, that the Panels members were experienced at interviewing, that they received training from the respondent on the importance of equality legislation and were in addition, briefed by the respondent HR representative on the morning of the interviews. It is clear that the candidates in this competition were assessed across additional and more specific criteria than those applied to the previous Grade V competition in March, 2005. The complainant contends that this change was a deliberate attempt on the part of the respondent to disadvantage him. I cannot accept that proposition. A member of the Interview Panel attended the Hearing and gave evidence. I found her evidence compelling and consistent. I am therefore satisfied, on balance, that the Interview Panel agreed the evaluation criteria itself on the morning of and in advance of, the first interview. Its decision in this regard was based on the Job Specification furnished to them and the knowledge the evaluation criteria must have a real link with the requirements of the post. I am further satisfied that this decision was reached without influence from the respondent, other than drawing their attention to the Code of Practice from the Commission for Public Service Appointments and that they agreed the format for questioning candidates. All candidates were assessed across the same criteria and again the complainant confirmed at Hearing that he was not asked any question which he viewed as potentially discriminatory. Interview notes were furnished in respect of all six candidates. Having evaluated all of the evidence presented to me on this point and taking into regard the views of the Labour Court in Dublin Institute of Technology v A Worker[4] ( see previous paragraph) I am satisfied that the respondent has discharged the burden of proof placed on it.

6.         DECISION OF THE EQUALITY OFFICER.

           I have completed my investigation of these complaints and make the following Decision in accordance with section 78(6) of the Employment Equality Acts, 1998-2008.

I find that –

(i)                                          the complainant’s claims of discrimination in respect of the competition to Grade IV in August/September, 1999  and the failure of the respondent to assign him authorisation to perform civil marriages between May, 1998 and May, 2000, were not referred to this Tribunal within the timelimit prescribed at section 77(5) of the Acts and are not therefore validly before the Tribunal for investigation,

(ii)                                        the complainant has failed to establish a prima facie case of discrimination on grounds of gender and/or age, in terms of section 6(2) of the Employment Equality Acts, 1998 -2004 and contrary to section 8 of those Acts, in respect of certain aspects of the selection process to Grade V in the respondent organisation in February, 2005 and the entire selection process to Grade VI in March, 2005,

(iii)                                      the respondent did not discriminate against the complainant on grounds of gender and/or age, in terms of section 6(2) of the Employment Equality Acts, 1998 -2004 and contrary to section 8 of those Acts, in respect of certain aspects of the selection process to Grade V in the respondent organisation in February, 2005 and the entire selection process to Grade V in April, 2006.

           _______________________________

            Vivian Jackson         

            Equality Officer

5  December,  2008