THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009 – 018
PARTIES
Mr. John Lambert
(represented by Ms Cathy McGuire, BL, instructed by Whitney Moore Solicitors)
and
Office of the Revenue Commissioners
(represented by Mr Anthony Kerr, BL, instructed by the Revenue Solicitors)
File Reference: EE/2006/232
Date of Issue: 20th of March 2009
Employment Equality Acts 1998 – 2008 – Sections 6, 8 and 74 – age, disability – discriminatory treatment – victimisation
1. Claim
The case concerns a claim by Mr John Lambert that the Revenue Commissioners discriminated against him on the grounds of age and disability contrary to Sections 6(2)(f) and 6(2)(g) of the Employment Equality Acts 1998 to 2004, in not appointing him in a liaison officer role at the Embassy of Ireland in London, and victimised him for his involvement, in a Personnel Officer role, in a previous case taken against the respondent under the Employment Equality Acts, contrary to S. 74(2) of the Acts.
Background
The complainant submits that the respondent discriminated against him on the grounds of age and disability, in that his supervisor made discriminatory remarks related to the complainant’s age, and a previous six-month absence on sick leave, and provided the complainant with a poor overall assessment, for a Revenue liaison position at the Irish Embassy in London.
The complainant further submits that his supervisor victimised him for his previous involvement, as Personnel Officer of a specific division of the respondent’s, in complaints against a named official of the respondent’s under the Employment Equality Acts. The complainant submits that he received a lower rating from his supervisor because the supervisor was a close friend of the official complained against at the material time.
The respondent denies that it discriminated against the complainant and submits that the complainant’s supervisor did not recommend him for the position in London due to the complainant’s lack of specific skills and experience for the position.
The respondent further denies the complainant’s complaint of victimisation and submits that the complainant’s supervisor had no knowledge of the complainant’s previous involvement in proceedings at the Tribunal at the time he made his recommendation.
The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 5 July 2006. On 5 October 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this day my investigation commenced. A submission was received from the complainant on 31 July 2007. A submission was received from the respondent on 11 September 2007. A joint hearing of the claim was held on 17 June 2008, and was subsequently resumed and concluded on 2 July 2008. Subsequent correspondence with the parties concluded on 18 February 2009.
Summary of the Complainant’s Written Submission
The complainant submits that he is a civil servant and has served in the Office of the Revenue Commissioners for 38 years. He is currently serving at the grade of Assistant Principal Officer (Higher Grade).
From June 2000 until November 2003, the complainant served in a Human Resources role in the Office of the Chief Inspector of the Revenue Commissioners. He submits that he was involved in briefing the then chairman of the Revenue Commissioners, Mr Frank Daly, on two complaints brought against a named individual under the Employment Equality Acts, one of which proceeded beyond an internal investigation to the filing of a complaint with the Equality Tribunal.
The complainant submits that from September 2004 to February 2005, he was on sick leave for work related stress. On his return from sick leave, he was assigned to a different role within the organisation.
In January 2006, the complainant applied for a secondment to the Irish Embassy in London, in the role of Fiscal, Tax and Customs Liaison Officer. The relevant circular contained two application forms, one to be completed by the applicant, the other by the applicant’s supervisor.
The complainant submits that his supervisor was a close friend of the named official against whom complaints had been made under the Employment Equality Acts, and that they were in regular contact. He contends that this fact influenced his supervisor’s opinion of him, amounting to victimisation pursuant to S. 74(2)(e) of the Acts.
A few days after this telephone conversation, the complainant and his supervisor met in person to discuss the complainant’s application. The complainant submits that his supervisor told him he felt unable to give the complainant a positive recommendation for the position, citing various reasons, including the complainant’s sick leave absence.
The complainant submits that he challenged his supervisor in the issue of the sick leave, saying that it related to work issues that the supervisor knew nothing about.
Summary of the Respondent’s Written Submission
The respondent submits that the complainant’s role in the complaints against a named individual under the Employment Equality Acts was limited to the briefing of the organisation’s chairman; and that all other matters connected to these complaints were handled by an official at Assistant Secretary level in the respondent’s main Human Resource Division. The respondent further submits that the complainant’s supervisor was unaware of the complainant’s involvement in these matters at the time of the complainant’s application for fiscal attaché, and denies any occurrence of victimisation.
The respondent further submits that the assessment of the complainant’s supervisor, regarding the complainant’s suitability for the position of fiscal attaché at the Irish Embassy in London, was based on a thorough assessment of the complainant’s suitability for the position, including consultations with previous first- and second-line supervisors of the complainant. The respondent submits that the complainant’s lack of experience in customs work, report-writing and communication abilities, and ability to work on his own initiative, as transpired from his supervisor’s consultation with former supervisors, and his supervisor’s own experience of the complainant in his current and previous roles in which they worked together, were the factors that influenced the outcome of the assessment.
With regard to the telephone conversation referred to in the complainant’s submission (see para 3.6above), the respondent submits that the complainant’s supervisor recalls that he enquired after the complainant’s recent illness, and how his current work was suiting him. The respondent submits that this was because it was the first opportunity the supervisor had to talk to the complainant about how he was getting along in the division.
The respondent further submits that the alleged reference to the complainant’s age in the same telephone conversation was that the supervisor said the complainant would be based in London for three years, and had he given enough thought to the upheaval that would involve. The respondent submits that the supervisor’s recollection of the conversation is that he said to the complainant that it was not something he would do at this stage of his career, and that he and the complainant were much the same age. The respondent submits that in making these remarks, the supervisor had the complainant’s best interest at heart and wanted to ensure that the complainant had reflected on his application carefully. The respondent denies any discriminatory intent on behalf of the supervisor.
Regarding the complainant’s completed assessment for the position of fiscal attaché (see para 3.9above), the respondent contends that the specific and global ratings of the complainant were not inconsistent and that the global “D” rating reflected the complainant’s actual lack of suitability. The respondent further contends that the posts of fiscal attaché and Senior Inspector of Taxes are very different, and that suitability ratings for the posts therefore cannot be compared.
Conclusions of the Equality Officer
The issues for decision in this case are:
(a) Was the complainant discriminated on the grounds of disability and/or age contrary to S. 8(1) of the Acts with regard to the appointment process for the position of fiscal attaché at the Irish Embassy in London?
(b) Was the complainant victimised contrary to S. 74(2) of the Acts for briefing the respondent’s chairman about a complaint made to the Tribunal?
In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
In my examination of the relevant evidence, I follow the decision of the High Court in Mary Helen Davis v. Dublin Institute of Technology [1999 No. 493SpCt5], which was an appeal on a point of law from a Labour Court determination, which in turn was an appeals decision from an Equality Officer determination under the Employment Equality Act, 1977. In that case, the complainant and the successful candidate, as well as other short listed candidates, were quite close in qualifications and experience. Quirke J upheld the Labour Court’s finding that these differences were insufficient in terms of qualifications, experience and responsibility to justify a prima facie finding of discrimination, and noted that a
gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation of the type referred to in Zafar (supra). A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidates“together with” a gender difference may give rise to such a requirement. [Emphasis added]
I therefore propose to examine first whether the complainant has established a significant age difference and/or disability in the terms of the Acts.
In terms of the complainant’s age vis-à-vis the other candidates, I note that the candidates were of the following ages at the time their applications were considered:
Candidate A 56 years
Candidate B 44 years
Candidate C (successful candidate) 51 years
Candidate D (complainant) 54 years
Candidate E 51 years
Candidate F 52 years
Candidate G 38 years
Candidate H 59 years
Candidate I 44 years
Candidate J 38 years
Candidate K 46 years
Candidate L 37 years
From the above list, it is clear that the age difference between the complainant and the successful candidate is small, and that candidates both younger and older than the complainant were unsuccessful in the competition. I am therefore not satisfied that it can be inferred that the complainant’s age had a bearing on his lack of success in the competition.
I now turn to the question whether the complainant had a disability. “Disability” is defined as follows in S. 2 of the Acts:
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part on a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic illness or disease,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction,
(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.
The complainant submitted that he had to take a lengthy sick leave due to work-related stress from September 2004 to February 2005. He did not submit any additional evidence on how that stress was disabling him. While a condition that renders a person incapable of working can also be a disability within the meaning of the Acts, the complainant submitted no such evidence. I therefore find that the complainant has not established that he was disabled pursuant to S. 2 and 6 of the Acts.
In terms of the complainant’s complaint of victimisation, I note that S. 74(2) of the Acts defines victimisation as adverse treatment of an employee by his or her employer occurring as a reaction to:
(a) a complaint of discrimination made by the employee to the employer;
(b) any proceedings by a complainant;
(c) an employee having represented or otherwise supported a complainant;
(d) […];
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment;
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
It is undisputed that the complainant briefed the respondent’s chairman on a case before the Tribunal. Based on information provided at the hearing, I am satisfied that the Tribunal was indeed seized of the complaint, which was nevertheless settled between the parties, and subsequently withdrawn, before it was delegated to an Equality Officer for investigation and decision. The complainant stated in oral evidence that he briefed the respondent’s chairman on his own initiative because of the grade of the persons involved, and that because of this briefing, his supervisor gave him a lower rating for the position in question, because he was a close friend of the alleged wrongdoer. The complainant’s supervisor, in cross-examination, strenuously denied knowing about this briefing at the material time.
I consider that the briefing which the complainant undertook constitutes him opposing by lawful means an act which is unlawful under the Acts, within the meaning of S.74(2)(f). However, I found the complainant’s supervisor to be a credible witness and his evidence to be cogent. I also wish to note that the complainant did not challenge the evidence. In the absence of any other evidence that the complainant’s rating for the position was in any way influenced by his actions pursuant S. 74(2)(f) of the Acts, I find that the complainant has not established a prima facie case of victimisation, and that his complaint therefore fails.
Decision
Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) The respondent did not discriminate against the complainant on the grounds of age and disability contrary to Sections 6(2)(f)and 6(2)(g) of the Employment Equality Acts 1998 to 2008 contrary to S. 8(1)(c) of the Acts, in not appointing him in a liaison officer role at the Embassy of Ireland in London and
(ii) The respondent did not victimise the complainant for his involvement in a previous case taken against the respondent under the Employment Equality Acts, contrary to S. 74(2) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
20 March 2009