EQUALITY OFFICER'S DECISION NO: DEC-E/2008/004
PARTIES
FAGAN
(REPRESENTED BY CONOR POWER BL INSTRUCTED BY
THE EQUALITY AUTHORITY)
AND
THE OFFICE OF THE REVENUE COMMISSIONERS
1. DISPUTE
This dispute involves a claim by Mr. John Fagan that he was discriminated against by the Office of the Revenue Commissioners on grounds of age, in terms of section 6 of the Employment Equality Act , 1998 and contrary to section 8 of that Act when it (i) failed to appoint him to an acting position of Assistant Principal Officer in April, 2003 and (ii) failed to consider him suitable for promotion to the substantive grade of Assistant Principal Officer on the basis of seniority/suitability in August, 2003
2. BACKGROUND
2.1 The complainant commenced employment with the respondent in 1979. At the time of the alleged discrimination he had fourteen years service as a Higher Executive Officer. He contends that he was considered suitable for promotion to the position of Assistant Principal Officer from 2000 and became eligible for promotion to that grade on the basis of seniority/suitability in 2003. He alleges that in February, 2003 having been asked if he was interested in acting up to the post of Assistant Principal Officer to cover a period of maternity leave, he was discriminated against on grounds of age when a younger colleague was assigned to the position. He further alleges that he was discriminated against on grounds of age when, in August/September, 2003, he was not recommended as suitable for promotion to the grade of Assistant Principal Officer on the basis of seniority and other colleagues in his Unit, who were all younger than him, were put forward as suitable. The respondent rejects the complainant's assertions in their entirety and states that his age had no bearing on the decision not to appoint him to the post of Assistant Principal Officer at any stage.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 25 March, 2004. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a Hearing of the complaint took place on 25 April, 2007. A number of issues emerged at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties. This process concluded in late October, 2007.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that at the time of the alleged discrimination he was an employee of the respondent for twenty-four years, the last fourteen years at the grade of Higher Executive Officer. He state that following assessment by his Line Manager (Mr. A) in respect of both 2000 and 2001 he was rated as "suitable for promotion" to the grade of Assistant Principal Officer. He adds that in January, 2003 he was assessed by his Line Manager (Ms. X), was given a very satisfactory report and was deemed "as well qualified" for promotion. The complainant states that in February, 2003 he was asked (by Mr. A) if he was interested in acting-up to the grade of Assistant Principal Officer for a period covering Ms. X's absence on maternity leave and replied that he was. He adds he was subsequently informed that another, younger colleague had been appointed to the acting position. The complainant contends that he was more suited and experienced for the post than the appointee and he was therefore treated less favourably because of his age. The complainant states that when he raised his disappointment with Mr. A (his Principal Officer) about his failure to secure the acting position, he (Mr. A) replied that the respondent had decided to fast track certain personnel for promotion, that the successful candidate was one of those younger employees who was to be given every opportunity to gain relevant experience and the respondent had decided to give it to the younger man. He adds that Mr. A informed him he (Mr. A) would have no hesitation in recommending him for promotion save in one area - legislation.
3.2 The complainant states he became aware in August, 2003 that a number of other employees in the building where he worked had been asked to express a view on whether or not they were interested in promotion to Assistant Principal Officer on a seniority basis, in the context of the respondent's Consistory Process which was to take place in the near future. This process entails a person's Principal Officer recommending that person as suitable for promotion, the respondent's Management Advisory Committee (comprising staff at Assistant Secretary and above) making a decision on that recommendation in the course of a Promotion Conference and the successful candidates being placed on a Panel for promotion. The complainant states that this was the first occasion he was eligible for promotion under the Consistory Process and contends that three younger colleagues were put forward for consideration. He adds that his Principal Officer at the time (Mr. Z), did not recommend him as suitable for promotion via the Consistory Process because (i) he (the complainant) had failed to secure the acting up position in February, 2003 and (ii) the complainant had failed to demonstrate the required competencies, in particular the necessary leadership and managerial skills. Reference was also made to statistics and the outputs of his Unit. The complainant states it was well known by the respondent's Senior Management that there were staff problems with the Unit for some years previously and this was accentuated by the fact that the complainant had been assigned other responsibilities in relation to Accommodation/Housekeeping issues for the building. The complainant states he was never advised that there were issues with his performance or his leadership/management skills in the course of his discussions under the Performance Management and Development System - which is designed to highlight and address such shortcomings.
3.3 The complainant states that when Mr. Z confirmed the reasons he was not recommending him for promotion via the consistory Process on 22 August, 2003 he (the complainant) made a written appeal to Ms. D, who is the respondent's Assistant Secretary with responsibility for human resource issues. He states that he was informed by telephone on 2 September that there was no process for such an appeal but that his concerns would be mentioned during the course of the Promotion Conference scheduled for the next day. The complainant states that the next he heard was when he received a letter on 24 October, 2003 advising that he was not deemed suitable for promotion by the Promotion Conference on 3 September, 2003 because he did not display sufficient evidence of the level of competency required across the (six) criteria listed, which is required to perform at the grade of Assistant Principal.
3.4 In summary, the complainant submits that the initial appointment to the acting-up position in February, 2003 was discriminatory. He adds that his failure to secure this acting-up position was used as part of the reason to refuse to put him forward for promotion in August, 2003. He further submits that he was the only Higher Executive Officer eligible for promotion in the area who was not recommended as suitable for promotion via the Consistory Process and he was older than the other three employees recommended. In addition the reasons given for his failure in this regard are at odds with his assessments under the Performance Management Process. He submits that the foregoing, in tandem with the statistics showing the age profile of the applicants for the Promotion Conference in September, 2003, raises a prima facie case of discrimination. He further submits that the lack of transparency which surrounds the Consistory Process has been criticised in the past and has been considered as insufficient by the Labour Court
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that he was treated less favourably on grounds of age on either of the occasions referred to by him. It states that for a number of years prior to 2003 the complainant was assessed as suitable for promotion (point three on a five point appraisal scheme) by his Principal Officer (Mr. A). The respondent adds that he (the complainant) was advised by Mr. A that such a ranking, or even a higher ranking, did not guarantee future promotion at consistory. It adds that Mr. A also advised the complainant he did not consider him suitable for the full ambit of posts at Assistant Principal level.
4.2 The respondent states that three candidates were considered by Mr. A in the context of filling the post (on an acting basis) left vacant by Ms. X's absence on maternity leave. It states that Mr. A's first choice was Ms. R, who was in her late 50's, but she refused the offer to be recommended for the post. The respondent states that the choice then became a straight decision between the complainant and Mr. O, the eventual appointee. It contends that Mr. A discussed the suitability of the candidates with the then Collector General (Mr. I) and both had concerns over the performance of the section headed by the complainant. The respondent states that having given due consideration to the merits of both candidates and the exigencies of the post, Mr. A decided to recommend the appointee for the acting position. The respondent rejects the complainant's assertion that Mr. A subsequently informed him the respondent had a policy of fast tracking younger personnel for promotion and the appointee was such a person. It states that its policy on promotion is to progressively move towards a process of competition as distinct from seniority which gives all personnel the same opportunity to demonstrate the ability/suitability for a particular post.
4.3 The respondent states that Mr. Z was the complainant's Principal Officer at the time of the Consistory Process in August, 2003 - having been appointed to the position about four months previously. It adds that Mr. Z consulted both Mr. A (who was absent from work due to illness) and Ms. X about the complainant's suitability for promotion to Assistant Principal Officer. It states Mr. Z was informed by Mr. A that in his view, the complainant had limited suitability for promotion and he had reservations about his ability to adapt to a new role. It also states that Ms. X expressed the view that the complainant lacked focus on the targets for his section and that he lacked Management and Leadership qualities. The respondent (Mr. Z) states that he evaluated the complainant over six criteria which were circulated by the respondent's Personnel Officer and adds that he decided not to recommend the complainant as suitable for promotion. He adds that he spoke with Mr. I about his assessment of the complainant and he (Mr. I) was satisfied with the outcome. The respondent states that as a result of the complainant's written appeal to Ms. D in respect of the decision not to recommend him, the complainant was in fact considered for promotion in the course of the Promotion Conference on 3 September, 2003. However, following a debate by those in attendance, he was found not suitable for promotion as he had not displayed sufficient evidence of the level of competencies required to perform at the grade of Assistant Principal. The respondent adds that the complainant's age had no bearing whatsoever on this decision.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the complainant was discriminated against by the respondent on grounds of age, in terms of section 6 of the Employment Equality Act, 1998 and contrary to section 8 of that Act when it (i) failed to appoint him to an acting position of Assistant Principal Officer in April, 2003 and (ii) failed to consider him suitable for promotion to the grade of Assistant Principal Officer on the basis of seniority/suitability in August, 2003. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by witnesses at the Hearing.
5.2 At the time of the alleged discrimination the Employment Equality Act, 1998 was the statute in force. At that time it was the well established caselaw of this Tribunal and the Labour Court that in all cases of alleged discrimination the complainant must, in the first instance, establish facts from which it could be inferred that s/he suffered discriminatory treatment. It is only where such facts have been established and an Equality Officer regards them as being of sufficient significance to raise the presumption of discrimination that the burden shifts to the respondent to rebut the inference of discrimination raised. This practice is now part of Irish anti-discrimination legislation with the coming into force of the Equality Act, 2004.
5.3 The first incident of discrimination alleged by the complainant concerns an acting up position in his own section at Assistant Principal Officer level in February, 2003 to cover his immediate Line Manager's absence on maternity leave. Approximately two months prior to this the complainant had completed his annual performance review, under the Performance Management and Development System (PMDS), with his immediate Line Manager (Ms. X) and had been ranked as "well qualified" for promotion. In the previous two years (2001 and 2002) he had also been ranked at suitable for promotion on foot of similar appraisals. Yet his Principal Officer at that time (Mr. A) felt the complainant was not the most suited candidate for the post. Instead, the respondent asserts that the first choice was a female colleague of the complainant (Ms. R) who was in her late 50's but she declined the offer - and submits this demonstrates that the age of the complainant was not a factor in the decision. It was only when this refusal came about that Mr. A had to decide between the complainant and Mr. O - the eventual appointee. Unfortunately, by the date of Hearing Mr. A was deceased and the evidence adduced by the respondent was on foot of a statement prepared by him in April, 2004. This evidence suggested that Mr. O was a more suitable candidate for the post, but no other documentary evidence was adduced to support this assertion. In the course of the Hearing Mr. I confirmed that he has little or no role in the selection process and the final decision rested with Mr. A. The statement prepared by Mr. A in April, 2004 indicates that Mr. O had a rating of 1 (the highest possible) in respect of his suitability for promotion. Again, no evidence was adduced by the respondent to substantiate this assertion. It is common case that the complainant was considerably older than Mr. O. Having given careful consideration to the matter, I am satisfied, on balance, that the complainant has established a prima facie case of discrimination and the burden to rebut that inference shifts to the respondent. However, I do not accept that the scenario was part of a conscious and deliberate policy by the respondent to give experience to bright young staff, in order to give them an advantage over older personnel in subsequent promotion processes.
5.4 The second alleged incident of discrimination relates to the Consistory Selection Process for promotion to Assistant Principal Officer which took place in early September, 2003. I note that the complainant's Principal Officer at this time was Mr. Z, who had only been appointed to that post four months previously. At the Hearing Mr. Z gave evidence that when he assumed responsibility for the section Mr. A had briefed him of the strengths and weaknesses of the Higher Executive Officers in the area and in particular his concerns about the limited suitability of the complainant for promotion. He added that he was asked to assess the potential candidates in his area across six predetermined criteria - Appreciating the Wider Context, Using Resources Effectively, Interpersonal Effectiveness, Leadership, Commitment to Quality Results and Self Development and Working under Pressure - as set out by HR Division's Briefing Note for Management on the issue. The witness stated that in addition to the views of Mr. A on the complainant's suitability for promotion, he spoke with his Line Manager Ms. X to seek her opinion. I note that she (Ms.X) had been involved in the complainant's Annual Review under the PMDS process in late January, 2003 and had signed off that the complainant was "well suited" for promotion. I further note that her comments on the evaluation form included "Despite the targets not being achieved there was a marked improvement in rates achieved. HR movement in the unit had a negative impact on the unit's achievements." and "John is hardworking and leads his unit well". The is no suggestion in these documents that he has shortcomings in the areas of Leadership and Managerial Skills as indicated to him by Mr. Z in his e-mail of 22 August, 2003 when he (Mr. Z) outlined the reasons why he had not recommended the complainant for promotion. These reasons included the fact that the complainant had not been considered suitable for the acting-up position the previous February. I have already held that this process was tainted by discrimination and therefore the use of this failure in a negative manner against the complainant further compounds the discriminatory treatment of him. In the course of the Hearing Ms. X stated that she concurred with Mr. Z's assessment of the complainant at that time and resiled from her assessment of the complainant under the PMDS process in late January, 2003, stating that she could have been more critical of the complainant at that time. The respondent's Briefing Note for Management (referred to in the previous paragraph) required Mr. Z to discuss his assessment of the complainant with Mr. I. In the course of the Hearing Mr. I stated that he could not remember what Mr. Z said to him in respect of the complainant but added that whatever it was he was satisfied with his (Mr. Z's) judgement. However, the respondent confirmed that Mr. Z was not required to furnish his comments in writing and therefore no document exists to demonstrate the views of Mr. Z at that time. In the circumstances I find it difficult to accept that the complainant went from being "well qualified for promotion" to "not suitable for promotion" in seven months, particularly when he received no negative comments from his Line Managers about his performance during that period.
5.5 The complainant was subsequently considered for promotion in the course of the Promotion Conference but was deemed as unsuitable for promotion. No minutes or other formal record of the meeting was maintained, nor was the basis upon which candidates were deemed suitable or unsuitable reduced to writing. I am of the view that the selection process was wholly lacking in transparency and this combined with the fact that three of the complainant's colleagues - all younger than him - were recommended for promotion, one of whom was successful, is sufficient to raise an inference of discrimination on the proscribed ground and the burden therefore shifts to the respondent to rebut that inference.
5.6 Article 2 of the EU Directive establishing a general framework for equal treatment in employment and occupations(3) provides that there shall be no be no discrimination whatsoever on the grounds of age. It is well settled that in interpreting national legislation this Tribunal must do so in light of the wording and purpose of a Directive in order to achieve the result intended by the Directive(4). Whilst the events giving rise to this complaint occurred before Directive 2000/78/EC was transposed into Irish law the judgment of the European Court of Justice in Mangold v Helm(5)makes it clear that the rule of harmonious interpretation applies from the time a Directive comes into force - in this instance 27 November, 2000. It is therefore necessary for the respondent to prove, on balance of probabilities, that the rejection of the complainant for promotion was in no sense whatsoever on grounds of his age.
5.7 The Labour Court held on a number of occasions(6) that since the facts necessary to prove an explanation that a process was free from discrimination can only be in the possession of the respondent that Court (and therefore this Tribunal) should expect cogent evidence to discharge the burden of proof placed on an employer. The Court further held that it must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution(7). The respondent has failed to furnish a single document to demonstrate how (i) the complainant's failure to be appointed to the acting-up post in February, 2003 and (ii) the complainant's assessment and ultimately, his exclusion from the impugned Promotion Panel in August/September, 2003, were wholly related to factors unconnected with his age. This dearth of records has previously been held by the Labour Court as "an insuperable difficulty"(8) and "impossible"(9) for the respondent to discharge the onus of proof placed upon it. I therefore find that the respondent has failed to rebut the inference of discrimination raised and the complainant's claim is entitled to succeed.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I find that the respondent discriminated against the complainant on grounds of age, in terms of section 6 of the Employment Equality Act, 1998 and contrary to section 77 of that Act, when it (i) failed to appoint him to an acting position of Assistant Principal Officer in April, 2003 and (ii) failed to consider him suitable for promotion to the grade of Assistant Principal Officer on the basis of seniority/suitability in August/September, 2003.
6.2 I note the statistics submitted by the respondent detailing the age profile of the applicants for the Promotion Conference in September, 2003 indicate that only 60% of those considered for promotion at that Conference were successful. In those circumstances it is quite possible that had the complainant not been treated the way he was he still might not have been considered suitable for promotion and placed on the Panel. I am also conscious that Directive 2000/87/EC requires sanctions for infringement of the principle of equal treatment to be effective, proportionate and dissuasive. Taking these factors and the circumstances into account I consider it reasonable the redress is measured at €60,000 and in accordance with my powers under section 82 of the Employment Equality Acts, 1998 and 2007 I order that the respondent pay the complainant that amount by way of compensation for the distress suffered by him as a result of the discrimination. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
6.3 I am mindful that the consistory method of promotion is regarded as a suitable mechanism of promotion in the civil service and that many Government Departments still operate it for such purposes(10). However, the lack of transparency in the process can create an environment where discrimination can exist. I therefore further order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998 to 2007 that, should the respondent still operate this method of promotion, it take immediate steps to ensure that the process is conducted in an open and transparent fashion and that the reasons by which decisions are arrived at in the course of Promotion Conferences are clearly identified. In particular, adequate records must be retained in order to demonstrate that the entire selection process is objective and free from bias on any of the grounds covered by the Acts.
_____________________________________
Vivian Jackson
Equality Officer
5 February, 2008
footnotes
(1) Gillen v Department of Health & Children ADE/03/15
(2) O'Byrne v Department of Public Enterprise DEC-E2002-040
An Employee v A Government Department DEC-E2002-056
(3) Council Directive 2000/87/EC
(4) Marleasing SA v La Commercial Internacional de Malimentacion SA [1990] ECR 4135
(5) Case C-144/04
(6) Barton v Investec Henderson Crosthwaite Securities [2003] IRLR 332 and A Government Department v An Employee EDA062
(7) Nevins, Murphy, Flood v Portroe Stevedores [2005] 16 ELR 282
(8) The Department of Health and Children v Gillen ADE 03/15
(9) A Government Department v An Employee EDA062
(10) The Department of Health and Children v Gillen ADE 03/15 & A Government Department v An Employee EDA062