THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009- 064
PARTIES
A Complainant
-V-
A Government Department
File Reference: EE/2007/241
Date of Issue: 31 July 2009
1. Dispute
This dispute involves a claim by a complainant that he was indirectly discriminated against by a Government Department on grounds of age, in terms of section s28 and s31(1) of the Employment Equality Acts, 1998 and 2004 when it failed to shortlist him for interview for a position in the Department. The complainant has also advanced a claim of direct discrimination on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to sections 8 of those Acts.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 - 2004 to the Equality Tribunal on 16 May 2007 alleging that the respondent had indirectly discriminated against him on grounds of age in relation to a position in the Department.
2.2 In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 16th of January, 2009 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. A hearing on the complaint was held on the 3rd of July, 2009.
3. Complainants case
3.1 The complainant submits that he applied for a position within the Department on 22 November 2006 following which he was advised that he had not been short listed for interview. The complainant contends that the criteria used to assess the qualifications required for the post were altered from those advertised when it came to the short listing stage. The complainant states that the qualifications required were advertised as follows:
‘ a first or second class honours degree (or equivalent qualification) in economics, policy analysis, statistics, business administration, or related discipline with a significant quantitive analysis component’.
But submits that the criteria against which candidates were evaluated in the short listing assessment form were as follows:
‘ a first or second class honours degree (or equivalent qualification) in a relevant area such as economics, public administration, statistics or business administration.
The complainant contends that he was suitably qualified for the post although his primary degree was in Maths, not in one of the disciplines listed above, as he claims that a Maths degree includes a quantitive analysis component. As the revised wording does not refer to ‘a related discipline with a significant quantitive analysis component’ the complainant submits that the wording was changed on the short listing form to justify the fact that the Selection Board considered the complainant to meet the criteria as advertised.
3.2 The complainant also submits that the requirement to have a degree in ‘statistics’ could not be met by people who graduated before the 1980’s and thus could not be met by those over a certain age. To substantiate this claim he submits that single or double honours degrees in Statistics are only offered by 2 universities in Ireland (UCD, NUIM) and that their Departments of Statistics were established after 1980. In view of this he suggests that older candidates with Maths in their degree should be regarded as having an equivalent qualification to more recent graduates with Statistics.
3.3 The complainant submits that the criteria used in the short listing process were not applied consistently as he submits that one candidate whose primary degree was in physiology proceeded to Stage 2.
4. Respondents Case
4.1 The respondent has indicated that the complainant was disqualified at Stage 1 of the short listing procedure due to a failure to meet the academic qualifications prescribed for the post. The respondent argues that although a Maths degree (the complainants qualification) does include a quantitive analysis component it does not fall into the criteria listed for the post as they submit that it is not a ‘related discipline with a significant quantitive analysis component’ . The respondent concedes that the wording on the short listing assessment form differs from that advertised but contends that candidates were assessed on the original wording as advertised in the Information Memorandum. Furthermore, the respondent submits that the Information Memorandum did not encompass applicants with quantitative degrees where these were not in a discipline related to economics, policy analysis, statistics, business administration. They submit that the complainant’s qualifications were not related disciplines.
4.2 The respondent submits that the qualifications required for the post were much broader than just statistics and that the other relevant degrees were available prior to 1980. In addition the respondent submits that qualifications did not have to be met by a primary degree and that the complainant could have met these at any stage in his career through a subsequent primary degree or equivalent qualification. The respondent indicates that the complainants Ph.D had it been completed would have sufficed.
4.3 In response to the complainants contention that one candidate whose primary degree was in physiology proceeded to Stage 2 the respondents submission indicates that this candidates primary degree was in psychology. Furthermore a CPSA review of the short listing process indicates that the candidates score is based on both primary and post-primary degree and that the Chair of the Selection Board has advised the reviewer that the Board “took into account both thestrong statistical element in the psychology degree and the context in which research in this field is conducted. The Board were of the view that that the discipline draws on many of the same skills (survey skills, qualitative and quantitive analysis etc.) required in evaluation work. These considerations informed the Boards decision to regard the primary degree in that case as a related discipline.”
5. Conclusions of the Equality Officer
5.1 The issue for decision by me is whether the respondent discriminated against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, when it failed to short list him for interview. In addition I must decide whether the complainant as a member of a particular age group was put at a particular disadvantage in respect of the academic qualifications prescribed for the post one of which included a requirement to have a degree in ‘statistics’, that is if a prima facie case of indirect discrimination on the age ground arises in terms of s28 and s31(1) of the Employment Equality Acts, 1998 and 2004. Furthermore as regards indirect discrimination I must reach a decision on whether evidence has been presented that would amount to objective justification in terms of s22(1)(b) of the Acts.
Section 22 states:
(1) (a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
(1A) In any proceedings statistics are admissible for the purpose of determining whether subsection (1) applies in relation to A or B.
Sections 28 and 31 set out that section 22 can also be applied in relation to the age ground, where persons are of different ages.
5.2 On the day of the hearing the complainant re iterated his claim that the qualifications required for the post were altered in the assessment form used in the short listing process. The respondent stated that the altered wording on the short listing form was the result of a clerical error as the form had been copied and pasted from a short listing form used previously in another competition. The respondent further stated that although the wording on the form was incorrect the candidates were evaluated against the criteria advertised in the Information Memorandum. I am satisfied based on the evidence that this was in fact the case and that the candidates were assessed on the criteria set out in the Information Memorandum.
5.3 At the hearing the complainant stated that having contacted the Departments of Statistics of various Universities and checked various University websites he submitted that statistics was not available as a degree on its own prior to the 1980’s. He did however concede that statistics had been available as part of a combined degree (e.g. Stats and Maths) in UCC since the 60’s as evidenced by the respondent. The respondent indicated that a degree in statistics combined with another subject would have met the criteria for the post. The respondent stated that other qualifications were acceptable as set out in the Information Memorandum and was not limited to those with a qualification in statistics.
5.4 As regards the candidate who got through with a degree in psychology the respondent at the hearing stated that the confusion over whether this degree was in physiology or psychology was a typo in the version of the letter sent to the complainant and apologised for the error. The respondent submitted that a psychology degree does contain a significant element of quantitive analysis as well as a high statistical component. At the hearing the respondent stated that the psychology degree on its own would not have been enough to get through the short listing stage but advised that this candidate also had an MA in Business Studies which ensured that they met the qualifications requirement. I am satisfied based on the evidence presented that this was the case and that this candidate did have the qualifications outlined.
5.5 First, I must assess whether the complainant has succeeded in establishing a prima facie case of indirect discrimination on the age ground. The complainant contends that the requirement to have a degree in ‘statistics’ could not be met by people who graduated before the 1980’s unless the degree was acquired outside Ireland. The respondent’s evidence which was accepted by the complainant at the hearing submitted that combined statistics degrees were available since the 60’s. This indicates that such a degree could be held by persons in the age group to which the complainant belongs. Furthermore the qualifications requirement was not limited to a degree in statistics and in fact listed 3 other disciplines as well as the option of a 'related discipline with a significant quantitive analysis component’ a requirement which again could have been met by the complainants age group.
As regards the claim of indirect discrimination I am satisfied that the requirement in section 22 (1)(a)for a “neutral provision" is met by the statistics degree but I am not satisfied that this provision puts persons of a particular age at a particular disadvantage and so a prima facie case has not been established. In reaching this conclusion I note that the requirement for a degree in statistics (either single or combined) could have been obtained by the complainant at any stage in his career. In addition the complainant could have obtained any of the other relevant qualifications required for the post. Since I have found that the complainant has not has not established a prima facie case it is unnecessary to address whether or not evidence has been presented that would amount to objective justification in terms of section 22(1)(b).
5.6 On the day of the hearing the complainant also advanced a claim of direct discrimination on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to sections 8 of those Acts. The complainant indicated that he now wished to pursue this additional claim which had emerged from his examination of documentation provide by the respondent in the course of the investigation. At the hearing the complainant submitted that younger candidates with what he considered to be equally irrelevant qualifications had got through the short listing process.
5.7 Section 85A of the Employment Equality Acts, 1998-2008 provides as follows: "(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”. This requires the complainant to establish, in the first instance, facts from which it can be inferred that he was treated less favourably on the basis of his age. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.8 On the day of the hearing the respondent outlined the necessity for the qualifications requirement and stated that the disciplines listed were those which were considered to meet the requirements of the post. On the day of the hearing the complainant questioned why his qualifications were not deemed suitable. The respondent acknowledged that the complainant’s qualifications did contain a significant quantitive analysis component but that his qualifications did not meet the related discipline criteria. The complainant submitted that other candidates with what he considered to be equally irrelevant qualifications had got through the short listing process and that these candidates were of a younger age group than he was. I am satisfied based on the evidence presented that the selection of those candidates was unrelated to age.
5.9 I must now assess whether the complainant has succeeded in establishing a prima facie case that he was not selected for short listing because of his age. It is agreed between the parties that the complainant, who is in his 60’s did not get through the first stage of the short listing procedure. The respondent maintains that the complainant was not short listed due to his failure to meet the qualifications requirement. I must now consider whether the treatment of the complainant was less favourable than that which was afforded to another person in similar circumstances who was of a different age. Two other candidates with the same degree as the complainant who were of a younger age group (30's) also failed to meet the qualifications requirement. I am thus satisfied that the complainant did not get through stage 1 of the short listing process due his failure to meet the qualifications requirement as set out in the Information Memorandum and that this was not age related. I thus conclude that the complainant has not established a prima facie case of direct discrimination. In reaching my decision, I have taken into consideration all of the submissions, oral and written, made to me by the parties.
6. Decision of the Equality Officer
6.1 I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998-2008. I find that the complainant has failed to establish a prima facie case of indirect or direct discrimination on grounds of age contrary to the Employment Equality Acts, 1998 and 2004 and his complaint must fail.
___________________
Orla Jones
Equality Officer
31 July 2009