EDA0821

Background.

The factual background against which this dispute arose is not seriously in dispute between the parties and can be summarised as follows:-

In or about November 2004 the Respondent decided to create a post of Heritage Officer. An advertisement was placed in the public press inviting applications for the post. The advertisement listed the requirements for the post as follows: -

(a) Possess a relevant third level degree qualification, e.g. archaeology, earth/natural sciences, genealogy, planning, architecture;

• Criterion Total Marks
  
  Qualifications 100
  
  Relevant Technical 100
  Experience
  
  Communications /
  Interpersonal Skills 100
  
  Organisation &
  Management skills 100
  
  Initiative 100
  
  Knowledge of Role of
  Heritage Officer 150
  
  Knowledge of
  Local Government 50

• Criterion Total Marks
  
  Qualifications 50
  
  Relevant Technical 40
  Experience
  
  Communications /
  Interpersonal Skills 50
  
  Organisation &
  Management skills 50
  
  Initiative 50
  
  Knowledge of Role of
  Heritage Officer 70
  
  Knowledge of
  Local Government 25
  
  

Position of the Parties:

The Complainant

It is the Complainant’s case that he suffered two incidents of discrimination on the age ground in the course of the selection process for the disputed post. Firstly, he contends that the failure to short-list him for interview constituted an act of discrimination. He further claims to have been discriminated against in the interview process by being awarded less marks than were merited by his qualifications for the post.

It was submitted on the Complainant’s behalf that the selection process was unfair in a number of significant respects and that the marks which he received in the process did not reflect his qualifications for the post. It was submitted that the requirements for the post were changed from those initially notified to the candidates.


Specifically, it was contended that the requirement of experience at an appropriate senior level was never set out as a requirement for the post. Yet the Complainant was not short-listed because, it was believed, he did not have such experience. It was also submitted that a requirement to be familiar with the role of the newly created post was introduced without notification to candidates. It was further contended that the inclusion on the interview board of a person who had rejected the Complainant for short-listing was fundamentally unfair. Finally, it was submitted that the criterion of three years relevant experience was indirectly discriminatory on grounds of age. The Solicitor for the Complainant submitted that these matters constitute facts from which discrimination could be inferred for the purpose of shifting the probative burden to the Respondent.

In evidence the Complainant told the Court that he holds a BA degree from UCC in Geography and Archaeology. He said that after leaving university in 1999 he worked as a Historical Consultant and author. In those capacities he was involved in a number of significant heritage-related projects, the details of which were outlined to the Court. The Complainant has also written a regular newspaper column since 1999 on heritage and historical matters relating to Cork . He is the author or co-author of six books on aspects of Cork history. He has written a number of papers and delivered lectures on historical and heritage topics and has been involved in teaching on such topics in 15 schools throughout Cork. The Court was told that he has also acted as an expert witness in Court proceedings concerning a right of way over land. This necessitated research into the history of the land which was the subject of the proceedings. He has also been interviewed for television on historical matters relating to Cork.

The details of the Complainant’s work portfolio were set out in a document submitted as part of his application for the disputed post. A copy of this document was opened to the Court.

The Complainant told the Court that in response to a public advertisement he applied for the post of Heritage Officer with the Respondent. He completed an application form in which he set out his CV. He also forwarded a copy of his work portfolio with the application. By letter dated 25th January 2005 the Recruitment Officer of the Respondent advised the Complainant that he had not been short-listed for interview. The Complainant wrote to the Respondent requesting the grounds upon which he was not short-listed. By letter dated 14th February 2005 the Respondent’s Recruitment Officer replied pointing out that applications were short-listed on the bases of both qualifications and post-graduate experience. The Complainant was informed that his qualifications were adequate for the post but that, in the opinion of the selection board, his application did not demonstrate relevant heritage experience of sufficient calibre at an appropriate senior level.

The Complainant’s evidence was that he then consulted his Solicitor in the matter. The Solicitor submitted an appeal to the Personnel Officer of the Respondent against the decision not to invite the Complainant to interview. This appeal was allowed and the Complainant was invited to an interview.




The Court was told that the interview was conducted by three people. The Complainant said that the interview concentrated on the written application form. He was asked about his education, experience and publications. He was also asked to define heritage and to discuss the issues affecting both the natural and the built heritage. The Complainant told the Court that he was asked about the administrative area of Cork City Council and he was asked to outline what he considered to be the principal duties of the post under consideration.

The Complainant said that he dealt with all of the questions put to him and felt that he had done so satisfactorily.

The Complainant was subsequently informed that his application was unsuccessful. He then sought and obtained the results of the interview. He said that he could not understand how he had been marked so low and he did not accept that the marks awarded to him were reflective of his performance at the interview.

The Respondent

The evidence adduced on behalf of the Respondent can be summarised as follows:-

Mr Ciarán Hayes gave evidence. This witness chaired the interviews for the disputed post. He is Director of Services with Galway City Council in which capacity he is responsible for heritage related matters. He was asked to sit on the interview panel with Mr Scott and Ms Carr. The interviews were held over one day. The witness recalled that while ten candidates were listed only seven presented. Each interview lasted approximately 30 minutes.

Mr Hayes told the Court that candidates were assessed against a set of pre-determined criteria and marks awarded against those criteria. Members of the interview board did not mark candidates individually. At the end of each interview the members of the board discussed the candidate’s performance and a mark was agreed in respect of each criterion. The witness told the Court that he did not have a full recollection of the interviews but that he had refreshed his memory from notes which he had made contemporaneously. Copies of these notes were provided to the Court.

According to the witness, the Complainant did not answer questions put to him directly and appeared to have a strong leaning towards history. The witness said that the board was looking to identify the competencies of the candidates. The Court was told that marks were awarded on the basis of the candidates’ answers at interview and that no account was taken of matters referred to in the candidates' CV which were not raised at the interview.

The witness told the Court that the marking scheme was discussed in advance of the interviews by the board. It was agreed that a pass mark in respect of any of the identified criteria would be 50% of the marks available.


It was further agreed that any candidate who did not reach this mark in respect of any of the criteria would be deemed unqualified for the post. It was anticipated that a panel of suitable candidate would be formed and that in the event of the preferred candidate not accepting the post others would be ranked in order of merit. Following the interviews two candidates were recommended as suitable for inclusion on a panel. The Complainant was ranked seventh in the competition.

The witness said that a comment sheet was provided in respect of each candidate on which the observations of the board on the candidates were recorded. In the case of the Complainant the recorded comment was“would benefit from relevant experience in the heritage area”. This, the witness said, was based on the board’s view that the Complainant’s prior experience was insufficient to qualify him for a post at the level of that being filled.

Mr Hayes denied that the age of candidates was a consideration in the competition. He said that candidates were not asked their age and he did not know the age of any of them.

The witness accepted that the papers relating to the Complainant’s application were received separately from those relating to other candidates. The witness also confirmed that he had been made aware that an additional candidate had been added to the list drawn up for interview. The witness told the Court that he had participated in approximately 10 interviews since that in issue in the instant case. He accepted that in consequence his recollection of the detail of the interview in question was less than complete.

Mr Liam Scott gave evidence. This witness is Human Resources Manager with the Heritage Council. He was formerly Head of Business Services with that body. In that capacity he was involved in promoting a number of pilot projects with Local Authorities involving the appointment of Heritage Officers to work in promoting a greater awareness of both the built and natural heritage. He had approached the Respondent with a proposal to create such a post. The City Council agreed to make such an appointment.

The witness told the Court that he had participated in the interview process for approximately 25 Heritage Officer posts in various Local Authorities. He was asked to participate in the process of filling the post in Cork City Council.

The witness told the Court that 36 applications were received for the post. It was decided to engage in a process of short-listing candidates and to call for interview only those candidates who, on the basis of their written application, appeared to have a realistic possibility of appointment. The witness said that he undertook this task together with Ms Ann Bogan. The Court was told that it was decided to examine each of the application forms received so as to ascertain if the candidates had the prescribed qualifications, if they had at least three year's post-graduate experience, and if that experience was relevant. The witness said that by relevant experience he meant experience at an appropriate senior level.


He said that three years' experience was decided upon because the post was being filled at a level analogous to that of the post of executive engineer with a Local Authority and a minimum of three years' experience is normally required for appointment at that level. It was Mr Scott’s evidence that the Complainant’s experience was not at a sufficiently high level to qualify him for the post.

With regard to the interview itself the witness referred the Court to his contemporaneous notes which were put in evidence. He said that he stood over the marks awarded to the Complainant. He said that he was unhappy with many of the answers given by the Complainant to the questions which were put to him in the course of the interview. The witness confirmed that he had discussed the Complainant’s appeal with Mr Burke who is the Recruitment Officer of the Respondent.

It was put to the witness in cross-examination that his participation in the interview board was inappropriate having regard to his involvement in the short-listing process in which the Complainant had been rejected. The witness said that he had sufficient experience of interviewing to be able to assess candidates objectively and to disregard his preliminary view of the Complainant’s application. The witness also expressed the view that his role with the Heritage Council required him to participate in the interview.

The witness told the Court that age was not a relevant consideration in either the short-listing nor in the final selection. He said that he did not know the ages of candidates and was not interested in their ages. It was put to the witness that since candidates were required to give the years which they attended university and to provide a photograph, it would be possible to discern their ages from that information. The witness said that he had not sought to establish the ages of candidates and did not know what age the Complainant was at the material time nor did he know the ages of other candidates.

With regard to the criterion of relevant experience at a senior level, and that of knowledge of the role being filled, the witness denied that these were added to the published list. He said that they were implicit in the published requirements for the post.

Ms Ann Bogan gave evidence. Ms Bogan is a Senior Planner with the Respondent. It was intended that the Heritage Officer appointed would report to this witness. Ms Bogan confirmed that she participated in the short-listing of applications together with Mr Scott. She was also involved with Mr Scott in determining the criteria against which candidates would be short-listed for interview.

The witness told the Court that experience in a related field in a senior capacity was considered necessary for the post. This witness told the Court that the ages of candidates were not a consideration in the short-listing process. The witness also confirmed that she had no knowledge of nor interest in the age of any candidate.




Ms Sineid Carr was tendered by the Respondent for examination by the Solicitor for the Complainant in respect of a particular candidate in the competition. Ms Carr is Director of Services with South Tipperary County Council. She was asked if a particular candidate was employed by that Local Authority at the time of his interview. The witness told the Court that the individual had worked as a Heritage Officer but that he was not in that position at the material time. The witness was asked to comment on the reasons for the particular marks awarded to this individual. The witness was unable to recollect the reasons for the marks concerned.

Mr Michael Burke, who is Industrial Relations Officer with the Respondent, was tendered to give evidence. Mr Burke gave evidence concerning the appointment of the interview board and the preparation of the particulars of office for the post. He was also involved in dealing with some aspects of the Complainant’s appeal against the decision not to short-list him for interview. This witness told the Court that the only involvement which Mr Scott had with the appeal was that he had asked him to confirm the reason for excluding the Complainant at the initial stage.

Conclusions of the Court

The law.

Directive 2000/78/EC provides that, in respect of employment, there shall be no discrimination whatsoever on grounds,inter, alia,of age. The Act gives effect to the Directive in Irish law and must therefore be interpreted and applied so as to achieve the objective envisaged by the Directive. Thus, if it is established that the age of either the Complainant or that of the successful candidate was anything other than a trivial influence in the selection process, the complaint of discrimination will have been made out. (See dictum of Peter Gibson LJ to that effect inWong v Igen Ltd and othersIRLR 258).

There is no direct evidence in this case which could establish a causal connection between the Complainant’s lack of success in the impugned competition and his age. That is not, however, determinative of the case. It is well settled that those who discriminate rarely do so overtly and will not leave evidence of the discrimination within the Complainant's power of procurement. In most, if not all, cases of discrimination the core fact in issue is the motive or reason (whether conscious or subconscious) for the act or omission complained of. It would be palpably unfair to require a complainant to prove that the respondent was influenced by discriminatory considerations. Conversely, it is eminently reasonable to require the actor or decision- maker to explain the reason for his or her actions or decisions and to show the absence of a discriminatory taint. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof (seeNtoko v Citibank[2004] 15 ELR 116).

Section 85A of the Act, as amended, now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be inferred it shall be for the Respondent to prove the absence of discrimination.

The test for applying that provision is well settled in a line of decisions of this Court starting with the Determination inMitchell v Southern Health Board[2001] ELR 201.That test requires the Complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which he bears, his case cannot succeed.

The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish aprima faciecase. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

There are, however, a number of authorities which are instructive in considering the issues arising in the instant case. The mere fact of a difference in status (in this case age) and a difference in treatment in the sense that one person was appointed to a post and the other was not, is in itself insufficient to shift the probative burden. (see the Judgment of the Court of Appeal for England and Wales to that effect inMadarassy v Nomura International plc,[2007] IRLR 246). Further, in cases involving the filling of posts it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision-makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result (see Determination EDA042,Kathleen Moore Walsh v Waterford Institute of Technology).

Facts relied upon

In the instant case the Complainant contends that the selection process was unfair and that an inference of discrimination can properly be drawn from the factual matrix of the case as a whole. In advancing this line of argument the Complainant alleges that he was excluded from the competition at the short-listing stage by reliance on a criterion which was never specified as applicable, namely, experience of sufficient calibre at an appropriate senior level. He further contends that an additional criterion relating to knowledge of the role of the post to be created was added at the interview stage. It is also alleged that the marks awarded to the Complainant were incompatible with his qualifications and experience for the post. Complaint is made at the inclusion of Mr Scott in the interview panel in the light of his prior decision to exclude the Complainant from the competition at the short-listing stage. Finally, it is submitted that the criterion of experience at a senior level is indirectly discriminatory in that it places younger candidates at a disadvantage.

The Court has considered each of these contentions in the light of the evidence adduced and has concluded as follows: -

Conduct of the competition as a whole

The Court heard evidence from those who were involved in the various stages of the process of selection. The Court accepts that at each stage, including the short-listing stage, objective criteria against which candidates would be assessed were decided in advance and were applied consistently to each of the candidates including the Complainant. The Court is further satisfied that the Complainant was given the same opportunity to demonstrate his suitability for the post as were all other candidates and that there was no unfairness in the manner in which the interviews were conducted. The Court further accepts the evidence of those who were involved in the process that they did not know the Complainant’s age or that of other candidates.

Criteria for selection

The Complainant was initially excluded from the competition because his experience was not considered to be of sufficient calibre at an appropriate senior level. The Complainant contends that this was never specified as a requirement for the post as advertised. While the precise formula of words used in Mr Burke's letter to the Complainant advising him of the reason why he was not short-listed did not appear in the advertisement it was implicit that the post would be filled at a relatively senior level and that experience at a commensurate level would be required. This is evident both from the salary offered and from the duties of the post as set out in the particulars of office. Moreover, this criterion was applied to all candidates equally and there is no evidence from which the Court could infer that it was adopted so as to place the Complainant at a particular disadvantage.




The criterion relating to knowledge of the role of Heritage Officer was not expressly listed in any pre-interview documentation as a required attribute. Nevertheless, it is implicit that any candidate for any post would be expected to have an understanding of the role which he or she was seeking to fill. In the circumstances the Court cannot accept that the inclusion of this criterion is a fact from which discrimination may be inferred.

Marks awarded to the Complainant

The evidence before the Court is that marks were awarded on the basis of the answers given at interview. While the Court fully accepts that the Complainant was disappointed at the marks which he received and that he expected to do better, his belief in that regard is not a fact from which discrimination can be inferred. Moreover, the evidence adduced by the Respondent has satisfied the Court that the marks awarded reflected the honest and bona fide assessment of the Complainant’s performance by the appointed interview board.

Composition of the Interview Board

Here the Complainant submitted that the inclusion of Mr Scott on the interview board placed him at a disadvantage because of his earlier involvement in the short-listing process. The Court is satisfied on the evidence that Mr Scott came to an honest and bona fide decision in relation to the Complainant’s application at the short-listing stage and that his decision was not tainted with discrimination. Nevertheless, the decision was reversed on appeal and this appears to have been fully accepted by Mr Scott.

While, from the perspective of best practice and perception, it may have been better if Mr Scott had not participated in the interview board, the Court is nonetheless satisfied that he discharged his role objectively and with an open mind. In these circumstances the Court does not accept that Mr Scott’s participation in the interview process is a fact of sufficient significance to raise an inference of discrimination on the age ground.

Criterion of service at a senior level

It was submitted that the criterion of length of service at a senior level is indirectly discriminatory against younger candidates such as the Complainant. For present purposes indirect discrimination occurs where an apparently neutral provision criterion or practice places persons of a particular age at a particular disadvantage. It was submitted that the provision in issue had that effect in relation to the Complainant.

Prior experience in a relevant occupation is a frequent and accepted requirement for many posts. Before it could be regarded as indirectly discriminatory on grounds of age in a particular case it would be necessary to show that persons of the same age as the putative victim of discrimination are placed at a particular disadvantage by the requirement. However, even if it had that effect, it would not be unlawful if objectively justified on grounds unrelated to the age of the Complainant.

In this case the Complainant was 27 years of age at the material time and the successful candidate was 33 years of age. There was no evidence adduced, in the nature of statistics or otherwise, to show that persons of the same age group as the Complainant were at a particular disadvantage because of this provision relative to persons of the same age group as the successful candidate. Indeed, it is part of the Complainant’s case that he had relevant experience at a senior level which was not recognised by the Respondent.

In considering this point the recently delivered Judgment of the ECJ in Case C- 17/05Cadman v Health and Safety Executive[2006] IRLR 969 is instructive. Here the Court was asked to consider if the payment of higher rates of pay based on service was prohibited by Article 141 of the EC Treaty and Directive 75/ 117/EEC (the equal pay Directive). In addressing that point the Court had this to say: -

• “Since, as a general rule, recourse to the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better, the employer does not have to establish specifically that recourse to that criterion is appropriate to attain that objective as regards a particular job, unless the worker provides evidence capable of raising serious doubts in that regard”

Determination

For all of the reasons set out in this Determination the Court is satisfied that the Complainant herein has failed to prove facts from which discrimination on the age ground could properly be inferred. Accordingly the Complainant cannot succeed.

It is the Determination of the Court that the within appeal be disallowed and that the Decision of the Equality Tribunal is affirmed.



Signed on behalf of the Labour Court



Kevin Duffy
16th December 2008______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.