DEC-E2008-013 - Full Case Report

1.        DISPUTE      

1.1        The dispute concerns a claim by the AHCPS, on behalf of Mr. M.K.I. Fields, that he has been subjected to discriminatory treatment by FÁS on the grounds of age within the meaning of Section 6 of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts when he was unsuccessful in a competition for the position of Director.

2.        BACKGROUND

2.1       The complainant had been employed by the respondent organisation for a period of 27 years when a number of Director positions were advertised.  The complainant applied and was called for interview.  He was subsequently informed that he was unsuccessful in his application.  The complainant then endeavoured to establish the reason as to why he was unsuccessful but was unhappy with the response he received.  It was in these circumstances that he considered that the reason he was unsuccessful in his application was because of his age.  The respondent has denied this and says that the process of appointing candidates to the position of Director was conducted in an open and transparent manner without any discrimination on any ground under the Equality legislation.

2.2              Consequently the Union referred a complaint of discriminatory treatment on behalf of the complainant to the Director of the Equality Tribunal on 23^rd August, 2005 under the provisions of the Employment Equality Acts, 1998-2004.  In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 16^th March, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act.  Submissions were received from both parties.  The Equality Officer queried the time limits in relation to the referral of the claim with the parties and following receipt of submissions from both parties on this issue the Equality Officer issued a Direction finding that the complainant had shown reasonable cause to allow the time limit be extended from 6 to 12 months in accordance with Section 77(5)(b) of the Employment Equality Acts, 1998-2007.  By letter dated 5^th September, 2005 the complainant sought to have his claim of discriminatory treatment extended to include the ground of gender.  In her Direction the Equality Officer held that the claim of discriminatory treatment on the grounds of gender was outside the time limits under the Acts.  Neither party appealed this Direction to the Labour Court.  Therefore a joint hearing on the substantive issues in this case took place on 27^th February, 2008.  Further information was received from the respondent and the final information was received on 4^th March, 2008.

3.         SUMMARY OF THE COMPLAINANT’S SUBMISSION

3.1        The complainant states that he is 53 years old and has been employed by the respondent organisation as a Manager since 1977.  He was educated at St. Michael’s College, Enniskillen and at Queens University Belfast and he holds an M. Sc. in Training and HRM from Leicester University.  According to the complainant he is a member of the Marketing Institute of Ireland, an Associate of the Irish Institute of Pensions Managers and a fellow of the Institute of Training and Development.  During his career with FÁS the complainant says that he has managed at senior level in three different Divisions in the respondent organisation.  He has represented the respondent organisation for over 6 years in all Social Welfare Appeal Hearings; he was a Training Centre Manager and was Community Services Manager in 2 regions.  The complainant says that he has managed a long and highly successful Labour Market intervention for long-term unemployed people in Mayo in the mid-80s and in 1984 he was asked to manage the installation of a new General Ledger and Management Reporting System for the respondent organisation.  It is the complainant’s submission that this project, along with all others, which he managed, delivered to expectation within time and within budget.  The complainant submits that he has an enviable record of achievement, innovation and flexibility across a wide range of Divisions and functions at a senior level and he has represented the respondent to the highest standard.  This achievement and flexibility is reflected consistently in his manager’s Job Performance Report. 

3.2              The complainant states that in November, 2004 a number of Director posts were advertised, the stated objective of which was to establish a ‘panel’ of Directors to fill existing and upcoming vacancies.  The Person Specification demanded as essential qualities amongst others, an outstanding record of achievement, broad work experience at senior level and a record of continuous development and innovation.  Other essential qualities included a high standard in written and verbal presentation and a minimum educational standard of primary degree.  The complainant notes that the candidate was required to be professional, enthusiastic, flexible, a good leader and a consultative, outgoing, team-orientated individual.  Interviews were held on 17^th December, 2004.  There were 3 persons on the interview panel and the complainant was required to make a presentation on ‘Future Strategies for FÁS – Post 2005’.  Then on 24^th December, 2004 the complainant received a letter indicating that he had not been successful in his application.

3.3              The complainant states that he sought feedback and queried the following: 

·        Whether any candidate was better qualified educationally?

·        Whether any candidate was more flexible in terms of their record of service and rotation to date?

·        Whether there was any other candidate with a record of longer, wider or more varied cross-divisional senior management experience?

·        Where and by how much did he fall short of the required benchmark standard and was that benchmark standard reflected adequately in the Person Specification?

·        In what respect did he not demonstrate the ‘depth and breadth required for Director’ – how and where did he fall short of the Person Specification in that regard?

            The complainant says that there followed a lengthy period during which he was unable to get any credible or coherent information as to why his application had been unsuccessful and what his options were in the matter of an internal appeal.  According to the complainant this lasted from January to September, 2005 and was characterised by his being sent the Interview Assessment Report for another candidate, undertakings being promised and not being honoured, responsibility then being delegated to a HR Director who cancelled a number of ‘call’ appointments without notice or apology and undertakings promised by the HR Director at their eventual meeting not being honoured.  The complainant says that when he realised that there was no other option left to him in his pursuit of information he referred his claim to the Equality Tribunal and made a request for information using form EE2 under the Employment legislation.

3.4              The complainant states that on the basis of the information received from the respondent there were 25 applicants for the Director posts, 8 of whom were under 50 years of age and 17 who were over 50 years of age.  Of the 17 candidates who were over 50 years of age 1 was successful and that appointment was not announced until April, 2006 – more than a year later.  Of the 8 candidates who were under 50 years 3 were successful.  The complainant contends that, given the fact that only 1 out of 17 candidates over 50 years was eventually appointed, he has been discriminated against on the basis of his age.  In support of this argument the complainant notes the following:

·       FÁS Policy on Recruitment and Interviewing – was substantially breached during and following the interview process.  The policy states ‘the interview panel, with the guidance of the HR representative will assess the candidate against the Job Specification and Person Specification’.  The complainant notes that there was no HR representative on the interview panel to provide such guidance.  The policy stipulates that ‘feedback’ on interviews should be done by the candidate’s line manager and ‘other panel members should not discuss performance at an interview with an interviewee’.  The complainant states that on this occasion the ‘feedback’ interview was conducted with the Assistant Director General Employment Services and subsequently delegated to the Director of HR.  The candidate’s line manager was not consulted or involved.  The policy states that ‘the line manager’s written Job Performance report on the candidate is an integral part of the interview assessment’.  It was patently not so on this occasion according to the complainant - the Job Performance report shows the complainant to be an excellent match with the Job/Person Specifications’ essential attributes.

·       Scoring under ‘Education’ in the Interview Assessment Report was 3.75.  It is the complainant’s submission that he was advised by the Director of HR at their meeting on 8^th June, 2005 that this should have been 5, which he advised was the appropriate norm for an M.Sc., even ignoring the complainant’s other qualifications.  According to the complainant the panel gave insufficient weight to the Person Specification essential requirement of ‘broad experience at Senior level’.  The complainant notes that both of the successful male candidates spent all of their careers in FÁS within one Division and have been relatively recently appointed to management grades whereas he (the complainant) has had 27 years of high profile management experience with FÁS in three different Divisions.

3.5              The complainant says that there is evidence of institutional ageism as seen in the Director General’s comments in the ‘Talking Points’ of September, 2005 issue where he implies that a degree of inflexibility is to be expected of older staff.

3.6              The complainant states that he has been advised that the respondent did not keep a note of the questions asked or detailed notes of the interview, or at least would not release these to him.  Given all of the above the complainant contends that there is no other reasonable construction to put on events but that despite having met all of the requirements laid down in the Job and Person Specification, he was denied a position for which he was eminently qualified.  The complainant notes that there was a significant departure from the Organisation’s Policy and Procedure on interviews laid down in the Policy and Procedures Manual and candidates with less experience than him were appointed.  Since then the complainant says that he has been denied adequate explanation and is convinced that he is being discriminated against on the basis of his age.  The complainant contends that the systematic process of prevarication and delay to which the respondent has subjected him in not providing promised and reasonable information is a ploy to rule his complaint ‘out of time’ and compounds the discrimination.

4.                 SUMMARY OF THE RESPONDENT’S SUBMISSION

4.1              The respondent states that the post the complainant applied for was that of Director of which there were a number of vacancies.  A panel was constituted from which vacancies would be filled.  In accordance with established procedure the post was advertised on all Staff Notice Boards throughout the respondent organisation and via the respondent’s intranet.  The respondent says that competitions for promotional opportunities in the respondent organisation are held via the interview process.  As per respondent policy interview panels consist normally of a representative of the HR Department, a relevant line manager and an independent panel member.  The representative of HR will normally act as chairperson of the interview panel.  In some cases where a HR representative is not available or in the case of senior management vacancies, an Assistant Director General will take the role of chair of the panel.  The respondent says that every effort is made to ensure that there is a gender balance on the panel.  According to the respondent panel members are given an interviewing guide and are advised of the requirements of the Employment Equality legislation prior to interview and the chairperson of the interview panel is obliged to advise candidates that they need not answer any questions, which may be considered to be in contravention of the legislation.

4.2              The respondent states that it is satisfied that the competition to establish a panel for Director vacancies was conducted in a fair and proper manner and categorically rejects the complainant’s assertion that he was discriminated against on grounds of his age.  According to the respondent all 25 applicants were interviewed and rated in order of suitability on a panel of applicants from which four candidates were drawn to fill vacant posts.  The respondent says that the successful candidates met all the requirements of the Person Specification and demonstrated at interview to the satisfaction of the interview panel that they fulfilled the requirements of the Person Specification and had the necessary skills to perform the tasks detailed in the Job Specification for the post of Director.

4.3              The respondent notes the complainant’s contention that the procedure laid down by Policy for Interview was substantially breached in terms of his request for feedback.  In response the respondent says that it is normal in its organisation that if interview feedback is requested it is given by the Chairperson of the interview panel.  The respondent notes that although the policy says otherwise it is the experience of the respondent’s HR Department that candidates prefer, if their line manager is not a member of the interview panel, to receive their feedback from the Chairperson of the interview panel who is normally a HR representative.  It is the respondent’s submission that it is reviewing the policy to redress this inconsistency but it would assert that this departure from policy did not constitute or contribute to discrimination against the complainant on the grounds of age.  In terms of the Job Performance Assessment the respondent says that the interview panel may make reference to it to ascertain as to whether their views of the candidate echoed the assessment of the line manager.  While it is an integral part of the process the respondent says that it is the interview panel that makes the selection and not the line manager.

4.4              In relation to the inordinate delay referred to by the complainant the respondent states that it is regretted but it did not constitute or contribute to discrimination against the complainant on grounds of age.  In terms of the complainant’s contention that the respondent’s HR Director agreed at a meeting with the complainant that he should have been awarded a score of 5 instead of 3.75 the respondent says that the HR Director was of the opinion that the complainant had a primary degree and should have received a score of 3 for the primary degree as per the Person Specification and a further 2 points for his MSc. degree.  According to the respondent the complainant does not have a primary degree in his CV.  Rather he attended Queens University Belfast for one year from 1971 to 1972 and gives evidence of a qualification as ‘Arts’.  The respondent notes that the system of scoring Education and Training in the respondent organisation is:

·        Primary Degree – 3 points

·        Masters Degree – 2 points

·        PhD – 3 points

·        Relevant Diploma – 1 point

·        Other Diploma - ½ point

·        Relevant Certificate - ½ point

·        Other Certificate - ¼ point

            In this competition the Education requirement from the Person Specification was ‘Education to Primary Degree standard with relevant post – qualification experience giving an initial scoring of 3 points’.

4.5              The respondent notes that the complainant contends that there is no other reasonable construction other than age discrimination to put on events because in his view, despite having met all the requirements laid down in the Job and Person Specifications, he was denied a post for which he considers he was eminently qualified.  It is the respondent’s contention that it falls to the candidate on the day of the interview to convey his/her ability to the interview panel.  The respondent refutes the complainant’s contention that it is engaged in a systematic process of prevarication and delay after the interview as a ploy to rule his complaint ‘out of time’ thereby compounding the alleged discrimination.  Furthermore the respondent contends that the comments made by the Director General in the September, 2005 issue of its staff magazine ‘Talking Points’ does not constitute organisational ageism as alleged.

4.6              The respondent notes that the complainant is understandably disappointed at not having secured promotion to a post for which he believed he was a strong candidate but he has mistakenly come to the conclusion that his age was taken into account in the selection process.  It is the respondent’s submission that the fact that one of the successful candidates was older than him is testimony to the fact that it does not discriminate on the grounds of age in promotional competitions.  The respondent contends that there is no prima facie case of age discrimination and it refutes the claim that it discriminates on the grounds of age.

5.                 CONCLUSIONS OF THE EQUALITY OFFICER

5.1              The issue for decision in this claim is whether or not the complainant was subjected to discriminatory treatment by the respondent within the meaning of Section 6 of the Employment Equality Acts, 1998-2007 on the grounds of his age.  In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.

5.2              I must first consider, if on the facts, the probative burden in this case can be shifted to the respondent.  It is for the complainant to prove, on the balance of probabilities, the primary facts on which he relies in seeking to raise a presumption of unlawful discrimination.  It is only if these primary facts are established, to my satisfaction, as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove there was no infringement of the principle of equal treatment [1].   In order to shift the probative burden it is not necessary for the complainant to adduce direct evidence of discrimination on the age ground.  Such evidence will seldom be available since those who discriminate rarely do so overtly and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts [2].  The underlying rationale of this approach was explained by the Labour Court in the case of Citibank v Massinde Ntoko [3] as follows:

                    “This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement.  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 respondents capacity of proof”.

            The onus is on the complainant to establish a factual matrix from which an inference can be drawn that discrimination has occurred.  There is no exhaustive list of factors, which can be regarded as indicative of discrimination in the filling of promotion vacancies.  However, an inference of discrimination can arise where, for example a less qualified man is appointed in preference to a more qualified woman [4].  It can also arise from an unexplained procedural unfairness in the selection process [5].

5.3              In this case it is the complainant’s contention that he was discriminated against on the grounds of age when he was not placed on the panel for the post of Director.  In making this contention the complainant notes the following:

·        there was a significant departure from defined interview and feedback procedures including the constitution of the interview board;

·        the difficulty the complainant had in getting specific information about the interview process;

·        the Job Performance Report did not form an integral part of the interview process even though it should have under the respondent’s own interview policy;

·        the interview panel gave insufficient weight to the Person Specification essential requirement of ‘broad experience at Senior level’;

·        the interview panel did not keep a record of questions asked or notes made at interview or the complainant says was not prepared to release these (if they existed) to him;

·        the score he received under the heading of Education and Training was lower than what it should have been and this was pointed out to him by the respondent’s HR Director at the time;

·        he had more experience than any of the candidates who were placed on the panel;

·        there is evidence of institutional ageism in the respondent organisation and this is seen in the Director General’s comments in the ‘Talking Points’ Staff magazine of September, 2005 where he implies that a degree of inflexibility is to be expected of older staff.

5.4              I note that the respondent’s ‘Interview Assessment and Discussion’ policy is not very clear as to the constitution of interview board.  There is a reference to a Human Resources (HR) representative who normally acts as Chairperson of the Interview Panel.  There is no indication that this person should be a serving member of HR and I note that the Chairperson of the interview panel in this case was a former member of the HR team.  While candidates were assessed under five criteria the interview panel did not have defined questions for candidates.  Rather questions were based on a document entitled ‘Assessment Guidelines’ which clearly set out each criterion and the issues to be addressed under each criterion.  I am satisfied that the same Assessment Guidelines formed the basis of each candidate’s interview and that all candidates were assessed on the basis of this same set of criteria.  The complainant has contended that the Job Performance Report did not form an integral part of the interview assessment even though it is stated in the policy document that ‘the line manager’s written ‘job performance’ of the candidate is an integral part of the interview assessment’.  I am satisfied that there is no evidence to suggest that it did form an integral part of the interview process.  Having said that I note that the Job Performance Report for each candidate, placed higher than the complainant in the order of merit and indeed the complainant, were very positive.  On this basis I find that had the Job Performance Reports been scored then this would have made very little if any difference to the overall scores received by each of these candidates including the complainant.  It is stated in the policy that the internal applicant’s line manager, after consultation with the Human Resources Representative, will provide feedback.  In this case the Chairperson of the Interview Panel gave the complainant feedback on his performance at interview.  While this departs from the policy I find that it does not impact adversely or otherwise on the outcome of the interview process.  The respondent has noted that candidates prefer to get feedback directly from the Chairperson of the Interview Panel as opposed to their line managers.

5.5              The complainant considers that he was underscored under the heading of Education and Training.  It is his contention that as this criterion is objective it should have been scored in an objective manner, but this did not happen in this case.  According to the complainant it is his view that, having regard to the system for scoring Education and Training in the respondent organisation as set out in the respondent’s submission (see paragraph 4.4 above), he should have received a higher score under this criterion.  The complainant notes that this view was shared by the then Director of HR.  The Labour Court has held that it will not seek to undertake its own assessment of the candidates or substitute its views on their relative merits for those arrived at by the interview board [6].  Rather it is for me to examine the processes adopted by the interview panel to ensure that they were open, transparent and free from discrimination.  In this regard I note that the respondent in its submission set out a format for the scoring of qualifications under the criterion of Education and Training.  There was an anomaly between the scores the interview panel awarded to candidates and what they would have received if this scoring system had been applied.  For instance based on an objective scoring of qualifications as set out in the respondent’s submission some candidates should have received a higher score whereas the complainant should have received a lower score.  At the hearing of this claim the respondent stated that the interview panel, in awarding scores for qualifications considered the relevance of each of the qualifications irrespective of the level of the qualification (i.e. degree, masters, diploma, etc).  I find that this added an element of subjectivity in the marking of candidates under the criterion of Education and Training.

5.6              It was the complainant’s view that the criterion Work Experience is objective and should have been marked in an objective manner.  He stated that this did not happen, as he was the only candidate among the first eight candidates in the order of merit who had 27 years experience in 4 different Divisions.  It is the complainant’s submission that, as he had the highest level of management experience over a broader range of areas in the organisation, he should have been scored higher than any of the other candidates placed higher than him.  I note that the complainant received a score of 4.5 for Work Experience and that three other candidates ranked higher than the complainant in the order of merit also received marks of 4.5.  Of these three candidates two were younger than the complainant and one was older.  I do not accept that marks awarded for Work Experience would be solely related to the number of years experience in a management position.  Relevance would also form a major factor in assessing candidates.  However the interview panel failed to give a clear indication as to what constituted relevance and the proportion of the marks that would be allocated to candidates on this basis.  Having said that it is a fact that the complainant achieved the same score as another candidate who was older than him and, therefore, cannot contend that the marking under this heading was discriminatory on the grounds of age.

5.7              In relation to the other criteria the complainant pointed to anomalies in the comments under these criteria and the scores allocated.  He noted that in relation to one candidate a favourable comment was made under a particular criterion and a score awarded.  However a similar favourable comment made under the same criterion to another candidate resulted in a different and often lower score for the other candidate.  I am satisfied that it is unclear the basis on which marks were allocated to candidates under the heading of Motivation, Communications and Presentation as the interview panel did not set out a marking scheme under these headings.  For example under the heading of Motivation candidates were assessed in terms of Motivation for the Job, Personal Motivation and Work-Related Achievements.  Under the heading of Motivation a candidate could achieve a maximum of 6 marks.  There was no evidence to show how those 6 marks were broken down and the comments made on the Interview Assessment Report were not detailed enough to show how candidates demonstrated their motivation for the job, their personal motivation and their work-related achievements.  Each candidate was required to make a presentation to the interview board.  I note that the complainant over-ran in his presentation and left himself insufficient time to outline his vision.  In giving him feedback on his interview the Chairperson of the Interview Panel pointed this out to the complainant and I note that despite his low score for Presentation one other candidate who was ranked higher than the complainant received a lower score for their Presentation.  This candidate was older than the complainant.  However all other candidates both younger and older to the complainant received higher scores for their Presentations.  I am satisfied that there is no evidence that these particular markings were related to age.

5.8              At the hearing of this claim it was acknowledged that the Interview Panel had made a mistake in counting up the scores assigned to candidates and as a result had placed the candidate who achieved the third highest score in fourth place and the candidate who achieved the fourth highest score in third place.  It was not until after the candidates had been informed of their ranking on the panel that the error was discovered.  According to the respondent the candidate with the third highest score who was older than the complainant was appointment shortly after the competition whereas the candidate with the fourth highest score had to wait some 14 months to be appointed.  The respondent acknowledged that the panel was extended but stated that it would have been unfair to this candidate to have to undergo a competitive process again especially given the mix up in the counting of the scores.  I am satisfied that this was an error by the respondent organisation but it was not discriminatory on the grounds of age or indeed any ground under the legislation.

5.9              The complainant stated that there was evidence of institutional ageism in the respondent organisation and he cited an extract from something the Director-General had said in an issue of the respondent’s Staff magazine.  I do not find that the comments made by the Director-General can be considered as evidence of institutional ageism in the respondent organisation as alleged.

5.10          There were a total of 25 applicants for the post of Director in the respondent organisation.  All candidates were interviewed.  Four candidates were placed on a panel with three being appointed immediately and the fourth was appointed some fourteen months later.  The panel had been set up for a 12 month period but it was extended to enable the fourth and last candidate on the panel to be appointed.  At the time of the competition the complainant was aged 51 years.  Of the other 24 candidates 10 were younger than the complainant and 14 were older.  The complainant was placed 8^th in the order of merit of the candidates following interview.  Of the 7 candidates placed ahead of the complainant in the order of merit I note that 4 were older than the complainant and 3 were younger.  In relation to two of the younger candidates I cannot accept that the age difference between them and the complainant was significant where they were 47 years and 48 years as against the complainant who was 51 years.  While accepting shortcomings in the interview process I cannot accept that the selection process was tainted by unfairness to a degree, which would imply discrimination and I find that the complainant was not discriminated against on the grounds of his age when he was not placed on the panel for the position of Director.

6.                 DECISION

6.1              In view of the foregoing I find that FÁS did not discriminate against Mr. Fields on the grounds of age under the provisions of the Employment Equality Acts, 1998-2007 when he was not awarded higher marks to enable him to be placed on the panel for appointment to the position of Director.

6.2              In terms of my investigation I am satisfied that FÁS has failed to follow its own Interview Assessment policy and I recommend that it put in place a policy which is clear, unambiguous and one which is then strictly adhered to in future promotion competitions.  I further recommend that the respondent sets up clear guidelines on how criteria used to assess candidates are defined and marked so that they are objective rather than subjective as in this case.

            ______________________

            Gerardine Coyle

            Equality Officer

            12^th March, 2008