DEC-E2008-052 - Full Case Report

EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS, 1998 TO 2007

Equality Officer’s Decision No. : DEC-E-2008-052

Parties

Mr Hughie Mulhern

(Represented by National Bus and Rail Workers Trade Union)

vs

Irish Rail

(Represented by Colm Costello Solicitor)

File No.:          EE/2004/288

Date of Issue : 16 September, 2008

1.         DISPUTE

The dispute concerns a complaint by Mr. Hughie Mulhern that Irish Rail discriminated against him on the grounds of his age in terms of Section 6(2)(f) and contrary to Section 8 of the Employment Equality Acts, 1998 and 2004 in relation to access to promotion and that he was victimised within the meaning of Section 74 (2)as a result of making a complaint under the above Acts when he was denied access to a voluntary severance scheme administered by the company.

2 .        BACKGROUND

2.1       The complainant submits that he applied for eight promotions to Inspector positions in Irish Rail over a five year period.  He was unsuccessful in his applications and states that younger candidates were appointed who had considerably less experience than him.  The complainant alleges that he was discriminated on the grounds of his age in not being appointed.  He further states that following making a complaint to the Equality Tribunal, he was victimised by not being offered access to a voluntary severance scheme administered by the Company.

2.2        The complainant referred a complaint to the Director of the Equality Tribunal on the 3rd December, 2004.  In accordance with her powers under section 75 of the Acts, the Director delegated the case to Raymund Walsh, Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act on 28^th May, 2008 on which date my investigation commenced.  Submissions were received from both parties by 14^th March, 2008 and a hearing of the complaint was held on 15th July, 2008.  Further documentary evidence was requested from the respondent and correspondence ensued until 9^th September, 2008.

3.          SUMMARY OF THE COMPLAINANT’S CASE

3.1       The complainant who has over 33 years service with the company commenced at the base grade of Platelayer.  He was promoted to Patrol Ganger in 1999. He states that he applied for promotion eight times in five years without success and to Mobile Ganger in March 2007 based on seniority.  His current role involves him walking the line and checking crossovers for welding, sleepers, bolts, clips, crack alignment gauge and bridges. He provides a written weekly report to the Inspector informing him of the work that needs to be carried out.  He states that this part of his work is vital with regard to the safe operation of the railway.

3.2       The complainant states that he was interviewed on 29^th June, 2004 for the position of Competence Assessor but was unsuccessful.  The complainant argues that two of the three successful candidates for the positions had no experience and that his own experience far outweighed that of the remaining candidate who was successful.  He alleges that he was discriminated on the grounds of age in that younger less experienced applicants were awarded the positions. The complainant states that on 1^st July 2004, he was interviewed for the position of A class Inspectors.  Three candidates were successful and the complainant was again unsuccessful in his application.  He submits that the successful candidates were in Acting up training positions and were younger and had much less experience than him. 

3.3            The complainant contends that as a result of making a complaint of discrimination to

the Tribunal, he was victimised by not being offered access to a voluntary severance scheme.  A circular issued to union representatives dated 18^th August 2000 in relation to ‘Change proposals for staff in the Permanent Way Division’.  This included a package relating to a voluntary severance scheme.  The complainant states that he applied on numerous occasions for the scheme but was unsuccessful. He further contends that aside from the initial group of forty persons who were to avail of the voluntary severance scheme, other persons who did not fulfill the criteria were facilitated.  The complainant further alleges that at a meeting he asked a Senior Industrial Relations Officer (Mr A) with the company about access to the voluntary severance scheme but Mr A replied that he was not in a position to comment on this matter as it was the subject of an equality case.  The complainant furnished a copy of the minutes of the above mentioned meeting to the Tribunal. 

4.         SUMMARY OF RESPONDENT’S CASE

4.1       The respondent rejects the allegations of discrimination on the grounds of age and rejects the claim of victimisation.  The respondent states that selection for the disputed positions was by way of both suitability and competence as determined by interview boards.  It states that age was not a factor in selecting candidates. The respondent argued that carrying out work in the operative role is very different than that of an Inspectors/Supervisor role.

4.2       The respondent referred to a case brought to the Rights Commissioner by the complainant in 2004 with regard to staff being promoted into positions without interview.  In that case, the Rights Commissioner recommended that the practice of promoting workers in this manner ceases and that more appropriate procedures be put in place.  Since then the complainant has applied for a number of positions under new suitability and competency based interviews. The respondent stated that the complainant has been given feedback from these competitions but refuses to accept the decision of the panel.

4.3       The respondent stated that the advertisements for the positions together with a full set of interview notes and the marking system attached to each competency would be made available to the Tribunal.  The respondent accepts that the successful candidates were younger than the complainant but states that age was not a factor in the selection process.  The respondent stated that the interview panel for the promotional posts relating to class A Inspectors comprised the Divisional Engineer, Chief Inspector and a representative of Human Resources and in some competitions two representatives of the foregoing.  In relation to the promotion to Competence Assessors, the interview board comprised the Safety Manager and a representative of Human Resources Division.  The respondent contends that the panel always offer feedback to candidates who request same following the competitions.

4.4       The respondent stated that some appointments were made outside the competitions process but that these posts were not permanent positions and on some occasions arose from union requests for short term acting up positions for some of its members.  The respondent contended that age is not a factor in their selection of candidates for promotion and gave an example of a male in his 50’s who was promoted in the latter stages of his career.

4.5       In relation to access to the voluntary severance scheme, the respondent stated that a decision was made in August, 2000 that the forty most senior Patrol Gangers would be offered voluntary severance on the basis of length of service in the grade.  The respondent stated that they were offered the seniority list from the union and those placed in the top forty were offered voluntary severance.  They further stated that some persons declined the offer and the company followed on to the next person on the list but that the complainant did not come under consideration as he was too far down the list.  The respondent further stated that a monitoring committee was set up to conclude the voluntary severance scheme for the initial 40 staff at Patrol ganger level and in addition, to conduct a business case for each division in order to identify if there was a surplus of staff who might exit under the scheme.  The respondent stated that these arrangements were made in consultation with the Trade Union. 

5.         CONCLUSIONS OF THE EQUALITY OFFICER

5.1       In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.  It is for the complainant in the first instance to adduce evidence from which a presumption of discriminatory treatment on the age ground can be made.  In his initial complainant referral to the Tribunal on 3^rd December, 2004 the complainant highlighted sections indicating discriminatory treatment on the age and race grounds however the complainant’s union representative subsequently indicated that the complaint was one of age discrimination only. 

5.2       The complainant in correspondence and at the hearing refers in general terms to his lack of success over the years in promotional competitions and makes general allegations of favouritism which are unconnected with the discriminatory grounds and the age ground in particular.  The respondent referred to what it described as the libelous nature of some of the allegations.  This investigation focused on two competitions for which evidence was available and which took place within six months of the complainant’s referral to the Tribunal i.e.  (i) promotion to Competence Assessor positions for which the complainant was interviewed on 29^th June, 2004 and (ii)  promotion to A class Inspectors for which the complainant was interviewed on 1^st July, 2004.

(i) Promotion to Competence Assessor positions

Notes and competency marks were made available by Irish Rail in relation to interviews held in June 2004.  A table of marks is included at Appendix 1.  I note that in the case of three of the candidates who applied for the posts of Competence Assessor, first round notes and competency marks were not made available by the company.  The Respondent stated that the reason some of the files were missing was that the Infrastructure Department moved from its offices at North Wall Quay to Inchicore and some of the personnel files were mixed in with other files.  The maximum number of points available under each of the four competencies was five marks.  Candidates with the highest marks were called to a second round interview.  While the absence of some of the records is unsatisfactory, there is a consistent pattern between the competitions and it is clear from the available information that the reason the complainant was unsuccessful in his application was that he did not perform as well as the other candidates at interview and that his marks were lower than those of the other candidates who were called to a second round interview.  I am satisfied on balance that the reason the complainant was not successful in the Competence Assessor competition was due to his low level of marks in comparison with that of the other candidates and that the complainant has failed to adduce prima facie evidence of discriminatory treatment with regard to this competition.

(ii) Promotion to A class Inspectors

The Respondent forwarded a copy of the interview notes and competency marks to the Tribunal in respect of interviews held on July 2004.  A list of the marks awarded under five competencies is given at Appendix 1. The maximum number of points under each competency was five points. It is clear from the table that the complainant received lower marks in each competency compared to the marks of almost all the other candidates, particularly those of the successful candidates.  I note that for example in relation to the competency ‘Concern for Safety’ the complainant was given 2 marks out of 5.  The interview notes record the comment ‘would not report a man or pull a man up for a safety breach’.  In relation to Interpersonal skills the notes stated that the complainant was a ‘poor communicator’ and in relation to Planning/Organisation, the notes stated that ‘no example was given except organising a raffle’.  In relation to notes on one of the successful candidates in regard to ‘Concern for Safety’ the notes stated ‘proactive, aware, focused, very strong in this competency’.  In regard to Leadership, the notes stated ‘first with ideas to do work, people look up to him because of his experience and ability, takes other persons ideas on board, shows respect’ and the notes stated ‘good all round’ in relation to Interpersonal skills.  The complainant disputes the interview notes and contends that they are untitled documents invented at a late stage and were not available in 2004 when requested by the complainant.  The complainant also suggests that certain individuals were appointed without having to undergo a competency based interview however there was no evidence as to how these allegations were connected to discrimination on the age ground in the present complaint.  I am satisfied on balance that the reason the complainant was not in contention for the A class Inspector post was due to his low level of marks in comparison with that of the other candidates and that the complainant has failed to adduce prima facie evidence of discriminatory treatment with regard to this competition.                                                                                                                   

5.3       Access to the voluntary severance scheme        

The complainant contends that as a result of lodging a complaint of discrimination to the Tribunal, he was victimised by not being offered access to the voluntary severance scheme.  I note however that the voluntary severance scheme was launched in August, 2000, more than four years prior to the referral of the complaint to the Tribunal and was seniority based.  Clearly the complainant’s unsuccessfull attempts to avail of the scheme in that period were unconnected with his 2004 complaint. I have considered the evidence in relation to the complainant’s continued efforts to avail of the voluntary severance scheme and am satisfied that there was no evidence that the complainant’s requests were treated any differently or less favourably because of his complaint to the Tribunal.  I note the respondent’s evidence that consideration was given to extending the scheme beyond that of the original forty senior persons at Patrol ganger grade on a business needs basis in each division where a staff surplus was identified.  I note that the complainant himself concedes that the reason the voluntary severance scheme was not offered to the Patrol ganger grade in the Dublin area was due to the volume of trains and staff requirements in the area.  I am satisfied that there was no element of victimisation involved.

6.         DECISION

6.1       I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts 1998 to 2007.On the basis of the foregoing, I find that the respondent did not discriminate against the complainant in terms of Section 6(2) and contrary to the provisions of Section 8 or victimise the complainant within the meaning of Section 74 of the Employment Equality Acts, 1998 to 2007.

Raymund Walsh

Equality Officer

16 September, 2007

Appendix 1

Infrastructure Competence Assessor Grade A/ marks awarded on competency based interviews

Appendix 2

A Class Inspectors

Marks awarded on competency based interviews