DEC-E2009-022 - Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2008

Decision DEC – E2009-022

PARTIES

Mr. Tommy Bassett

and

Public Appointments Service

(represented by Chief State Solicitor’s Office)

File Reference: EE/2006/196

Date of Issue:  30 March 2009

1.       Dispute

This dispute involves a claim by Mr. Tommy Bassett that he was discriminated against by the Public Appointments Service on grounds of age, in terms of section 6(2)(f) of the Employment Equality Acts, 1998 and 2004 and contrary to sections 8 of those Acts, when it failed to recruit him to the position of Executive Officer Information and Communications Technology in the Civil Service following interview in March, 2006.

2.       Background

2.1       The complainant referred a complaint under the Employment Equality Acts 1998 - 2004 to the Equality Tribunal on 8 June 2006 alleging that the respondent had discriminated against him on grounds of age in relation to access to the post of Executive Officer in Information and Communications Technology in the Civil Service.  The complainant contends that he was suitably qualified for the post and that the respondent took his age into account in deciding not to appoint him to the position in question.  The respondent disputes this and maintains that the complainant was not recruited as he did not meet the qualifying standard following interview for the position.

2.2       In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case on 6 November, 2008 to me, Valerie Murtagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts 1998-2008. This is the date I commenced my investigation.  Written submissions were received from both parties. A hearing on the complaint was held on 5 March, 2009.

3.       Summary of complainant’s case

3.1       The complainant was interviewed for the position of Executive Officer in Information and Communications Technology in the Civil Service on 9 March 2006.  He was aged 49 at the time of the interview.  He was advised on 3 April 2006 that he was unsuccessful for the post.  He received a feedback report which contained the following overall summary comment, ‘candidate has long experience in an older IT environment.  He did not give evidence that he had the capability to transfer the benefit of his knowledge and experience to a modern IT environment.’  The complainant found this comment offensive as he felt it stereotyped him as an older person incapable of learning new skills.  He also felt that it was inaccurate as he had worked for many years in one of the most up to date IT environments i.e. the ESB.  The complainant contends that the comment was inaccurate as it referred to ‘older’ environments which can only mean mainframe environments, however the original advertisement for the job sought applications from ‘systems programmers’ which in the complainant’s experience is a term which in practice is used exclusively to refer to mainframe support personnel.

3.2       The complainant contends that his IT experience is not exclusive to mainframes but the fact the term ‘modern’ was undefined in the context of the competition left him comfortable using examples from that environment at interview.  The complainant maintains that given there appeared to be an anti-mainframe bias; this can only exacerbate any age bias due to the fact that people with such experience are generally older and such a bias in itself amounts to discrimination on grounds of age.

3.3       In relation to the interview, scores were awarded in five categories with 20 out of 50 being a qualifying score.  In relation to the category ‘working well with others’, the complainant was awarded a qualifying score of 20 in this area despite the fact he felt he did well at this point in the interview and the fact that few people would have the same experience as him having been a shift leader for many years.  In the category of ‘IT skills and experience’, the complainant was awarded 18 out of 50 despite the fact that he had experience in all nine areas of expertise which were outlined in the original advertisement despite the fact only two were required.  The complainant feels that his scores were suppressed because of an age bias and that there was a ceiling of 20 on the amount of marks that could have been awarded to him under any heading.

3.4       The complainant also has issues with the way in which his complaint was handled by the respondent.  He was informed that he could raise the matter with the Decision Arbitrator which he did request by letter but that the matter was reviewed as opposed to have being arbitrated upon although he was led to believe the latter process had been undertaken.  The complainant was informed that the substantive point of the review was that he did not demonstrate that he possessed experience of Local Area Networks, Wide Area Networks, Java and XML.  While the complainant states that he is not unfamiliar with these terms, he contends that they were never brought up or discussed at interview. 

3.5       The complainant sought statistics regarding the competition which he received in May 2006. The complainant states that based on those statistics, of 26 candidates interviewed, 5 were over the age of 35, none of which were among the 11 successful candidates and therefore he contends that this demonstrates an inference of discrimination on the grounds of age.

4.       Summary of respondent’s case

4.1       The respondent states that in October 2005, the position of Executive Officer, Information Communication Technology (ICT) was advertised nationally to be filled by way of open competition.  The complainant applied for the position, undertook selections tests and was interviewed by an expert board on 9 March 2006.  The selection board found that the complainant did not meet the standard expected of candidates for this position under a number of headings.

4.2       The following essential requirements for the position of Executive Officer ICT were published in the information booklet and were available to candidates at application stage.

Candidates must on or before, 10^th November, 2005:

• Hold a certificate or higher qualification in computer science or related discipline obtained following a course of at least two years duration at the appropriate level (level 6 or higher) under the National Framework of Qualification recognized by the Higher Education and Training Awards Council (formerly national Council for Educational Awards) or by the Dublin Institute of Technology.

and

• Have satisfactory technical experience in a modern and complex Information and Communications Technology (ICT) environment encompassing at least two of the following –

o   Telecommunications;

o   Networking;

o   Technical Architectures, Policies and/or Advice;

o   Operating Systems;

o   Application Servers;

o   Desktop Environments;

o   Database Design and/or Administration;

o   Web Environments;

o   Systems Programming and/or Development;

o   Application programming and/or Development

4.3       The respondent states that prior to attending for interview, candidates were requested to complete a supplementary application form and were informed that this would form the basis of the interview.  This supplementary form gave candidates the opportunity to outline their educational qualifications, their career to date and their key achievements/experience relating to five areas in particular.  The interview board members comprised two ICT experts from the Civil Service, supported by an experienced, independent Chairperson who also acted as the Public Appointments Service representative.  All board members receive extensive training including training on equality legislation.  The role of the Public Appointments Service representative is to ensure that the process is carried out in a fair and consistent manner and in accordance with the Commission for Public Service Appointment’s Code of Practice and that each candidate is assessed on their merits.  The representative is also responsible for reporting the findings/conclusions of the Board.

4.4       The respondent submitted below the details of the criteria assessed at interview and the marking system applied.  Each of the five criteria used carried a maximum mark of fifty (50) and a qualifying score of twenty (20).  In order to qualify candidates were required to achieve the qualifying score in each of the five categories.  The complainant failed to reach the qualifying score on 3 of the 5 of the categories.

The Interview Board recorded the following summary comment in relation to the complainant’s performance at interview; “Candidate has long experience in an older IT environment.  He did not give evidence at interview that he had the capability to transfer the benefit of his knowledge and experience to a modern IT environment.”

4.5       The respondent maintains that this assessment was very much linked to the requirements of the positions being advertised.  The board was tasked with selecting people with cutting edge ICT experience and skills that were in short supply at the time within the Civil Service.  The respondent contends that the complainant failed to outline in his interview that he possessed the skills mix required to expand the ICT skills pool within the Civil Service.  In addition to the technical areas where the board determined that the complainant had failed to demonstrate the relevant skills mix, he failed to demonstrate the necessary level of Planning and Organising Skills or the Commitment to Achieving Quality Results required.

4.6       The respondent states that following his interview feedback issued to the complainant.  This feedback gave information about the interview process itself, details of the complainant’s scores and the record of the summary comments of the interview board.  The Recruitment Unit within the respondent organisation which had responsibility for the particular competition had several telephone conversations with the complainant where they endeavoured to explain the process to him in greater detail and also to put into context the board’s findings in relation to the criteria for the position.  The respondent states that upon receipt of his feedback, the complainant requested a review of the interview board’s decision.  This request was acknowledged and an initial review was carried out by the manager of the Recruitment Unit.  As part of this review, the interview board’s notes for all candidates were revisited and the conclusion that the process was undertaken in a fair and consistent manner was reached.  The respondent states that the interview was competitive, based on candidates’ performance on the day.  The board awarded marks for demonstrated abilities under each competency/skill area.  Their marks and comments reflected their assessment of the complainant’s candidature.

4.7       Following receipt of this review, the complainant wrote to Mr. L, the Decision Arbitrator, requesting a full review of his candidature.  Unfortunately, Mr L was not in the office at this time, Mr P, Assistant Principal replied to the complainant’s letter in Mr L’s absence and explained that given the time lapse, he would carry out a full review.  Mr P conducted a thorough review of the selection process.  At the time of Mr P’s meeting with the interview board, they had a very clear recollection of the complainant’s interview.  They remained firm that the complainant did not show at interview that he possessed all of the competencies required for the role.  They recalled that the complainant had indicated that he spent a significant period of time working in a main frame environment.  The interview board clearly recalled that the complainant did not demonstrate on the day that he possessed the knowledge or experience in areas associated with “modern” ICT environments, e.g. Local Area Networks, Wide Area Networks nor in the use of technology such as Java and XML.

4.8       The respondent submits that the complainant’s interpretation of “systems programming” where he states that it is a term used exclusively to refer to mainframe support personnel is at variance with the interview board’s interpretation.  The interview board state that systems programming has a much broader context and includes in the definition programming of windows based and operating systems, client server systems and indeed programming of main frame systems.  The board stressed that they did not discount the complainant’s experience in a main frame environment but would have liked to have seen him demonstrate broader skills.  The interview board re-iterated that the complainant was treated fairly and consistently with all candidates interviewed for this position and under no circumstances and at no stage was there any discrimination shown to him, his application or candidature before or during his interview or in their assessment of him.

5.       Conclusions of the Equality Officer

5.1       The issue for decision by me is whether the Public Appointments Service 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 sections 8 of those Acts, when it failed to recruit him to the position of Executive Officer, Information Communication Technology (ICT) following interview in March, 2006.  In reaching my decision, I have taken into consideration all of the submissions, oral and written, made to me by the parties.

5.2       Section 85A of the Employment Equality Acts, 1998 and 2004 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.

5.3       On the day of the hearing, the forms relating to the technical experience of the 11 successful candidates from the complainant’s board were supplied and a copy given to the complainant for information.  Mr. D who was a member of the interview board stated that the documentation given to members of the interview board had no information regarding ages of candidates.  He also gave detailed evidence as to why the complainant was unsuccessful for the position based on the form he completed, the technical experience he had outlined and based on his performance at interview.  Mr. D also went through three forms at random of the 11 successful candidates relating to the technical experience they had outlined and explained how they fulfilled the criteria for the position based on their IT qualifications and expertise. 

5.4       Mr. D stated that the complainant’s application form gave very little detail regarding the complainant’s experience in the various technical areas outlined.  In this regard, Mr. D indicated that the complainant did not adequately illustrate with appropriate examples that he had in fact the relevant experience in these areas.  By comparison, the application forms of the successful candidates had comprehensive  details with examples of their experience in each of the technical areas.   Mr. D stated that this is the form on which the interview is based and thus such a lack of detail in the form presents great difficulties in questioning the candidate on specific experience.  Mr. D proceeded to provide his account of the interview during which he indicated that the complainant's responses to questions asked by the Board were quite short and that he failed to expand on answers even when questioned further.  He maintains that the complainant’s responses did not provide the Board with adequate detail of his experience in the technical areas.  I am satisfied based on the evidence provided at the hearing that the complainant was not successful for the post in question as he did not demonstrate to the interview board that he possessed the necessary qualifications and IT expertise required in comparison to that of the successful candidates.  I can find no facts from which an inference of discrimination can be raised that the complainant was treated less favourably on the grounds of his age and therefore I am satisfied that he has not established a prima facie case.

5.5         On the day of the hearing, it transpired that the statistics issued to the complainant in 2006 following his request for feedback were incorrect, in that, he was advised that the average age of those successful at interview was 28 and no candidates over 35 were successful at interview.  It transpired on the day of the hearing that in fact the person who came first out of 11 successful candidates from the complainant’s board was in his fifties at the time of interview and the candidate who came third on that panel was in his forties at the time of interview.  The respondent stated that candidates are not obliged to give their dates of birth on the application form and when they did a trawl on the system in 2006; incorrect statistics were issued due to the fact that some candidates had not given their date of birth.  However, Mr D who was a member of the interview board was aware that the first four successful candidates were assigned to his area and he was of the view that some of the successful candidates were over 35 years of age.  The respondent made further enquires and tracked down dates of birth from their database from other competitions which those candidates had previously applied for and the correct statistics were made available prior to the hearing.  I am of the view that due to the fact the respondent issued incorrect statistics to the complainant in 2006 following his request for feedback and given that those statistics were not corrected until prior to the hearing of the case, this exacerbated the complainant’s feeling of discriminatory treatment against him and if correct statistics were made available at the outset, the issue may have been resolved at an earlier stage.  

5.6       There was also some confusion in relation to the review requested by the complainant, in that, the respondent carried out a full review but the complainant had requested a review by a Decision Arbitrator.  However, due to the fact he was on leave for an extended period, another staff member carried out a full review and gave feedback to the complainant on his findings.  I am satisfied that the respondent made efforts to carry out an examination of the board’s findings and provided feedback to the complainant that the selection process was undertaken in a fair and consistent manner.

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 respondent did not discriminate against the complainant in terms of Section 6(2) and contrary to the provisions of Section 8 of the Employment Equality Acts, 1998 and 2008.

________________
Valerie Murtagh
Equality Officer
30 March, 2009