DEC-E2010-149-Full Case Report

Employment Equality Acts
1998-2008

EQUALITY OFFICER'S DECISION
NO: DEC-E2010-149

PARTIES
Horgan and Comiskey
(With Teacher's Union Ireland)
- V -
Co. Meath VEC
(With William Egan and Associates)

File references: EE/2007/547
Date of issue: 9 August 2010

Keywords
Employment Equality Acts - Discriminatory Treatment - Promotion/re-grading - Age ground - Prima facie case

1. Dispute

1.1. This dispute concerns a claims by Ms. Geraldine Horgan and Ms. Helen Comiskey (hereafter "the complainants") that they were subjected to discriminatory treatment in relation to a promotion competition to a deputy principal post contrary to the Employment Equality Acts by Meath County Vocational Education Committee (hereafter "the respondent") on the grounds of their age. The complainants stated that they applied for the post of Deputy Principal in Dunshaughlin Community College in response to an advertisement in a national newspaper in May 2007. The interview took place on 19 June 2007. The second complainant's claim of victimisation was withdrawn at the hearing.

1.2. The complainants referred their claims of discrimination to the Director of the Equality Tribunal on 18 October 2007 under the Employment Equality Acts. The claims were made on the age ground. In accordance with her powers under section 75 of the Acts, the Director then delegated this case to Tara Coogan- an Equality Officer - on 30 November 2009 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 4 May, 2 June and 17 June 2010. Final information pertaining to the complainants' salaries, requested by the Equality Officer at the hearing, was received on 25 June 2010.

2. Case for the complainants

2.1. The complainants, it was submitted, were discriminated against by the respondent by the application of an unfair and biased selection process in relation to the post of Deputy Principal. It was submitted that the complainants were both more qualified teachers with a proven track record of competence to meet the needs of the position. It was submitted that the respondent treated the complainants differently from younger candidates in making the appointment. The first named complainant has worked with the respondent since 1980. Since 2005 the complainant has been an Assistant Principal in the respondent school. The second named complainant has worked with the respondent since 1977. She has been an Assistant Principal since 1997. It was submitted that both candidates participated in life-long learning and kept abreast with professional developments. Both have a reputation of excellence in their respective areas and submit that their colleagues and the entire student body and their parents would vouch for this.

2.2. It was submitted that the events following the notification of the results and the consequences of both of the complainants expressing dismay and querying the appointment is very significant. It was submitted that this resulted in the complainants securing evidence of a strong bias towards the appointment of a young candidate. It was submitted that significant public utterances subsequent to the interview process confirm the age discrimination. It was submitted that further bias in favour of a younger candidate can be found in the application form, the interview process and the allocation of marks.

2.3. It was submitted that not all candidates were asked the same questions. No questions were asked about the complainants' proven track record as a teacher, their role as senior managers or other education work. It was submitted that this put them at a particular disadvantage as vital information about their careers and experience was excluded from the process. Such an approach, it was submitted, placed younger candidates who were less qualified and had a much shorter track record at a more favourable position. Consequently, it was submitted, the selection process and the selection of candidates were based on subjective, discriminatory facts that lacked transparency.

2.4. It was submitted that prior to the interview there was an atmosphere in the staff room that indicated a shift in perceived power. It was submitted that there was an overwhelming emphasis on the importance of information technology and that this was due to the Principal's past involvement in the computer business and his continued links with an information technology company. It was submitted that during this time young computer literate teachers were singled out to lead the introduction of information technology in the classroom. It was also submitted that most of the new computer technology was diverted to younger staff. It was submitted that no Assistant Principal was given the opportunity to become involved nor had any real knowledge of the project. It was submitted that the complainants contend that respondent discriminated against the more senior, experienced teachers in its methods of introducing the new information technology in the school. It was submitted that it was the connection with the information technology company that had secured the successful candidates appointment. It was submitted that the entire recruitment process was designed to exclude the older, more experienced and qualified candidates in favour of the younger candidate.

2.5. It was submitted that the respondent's named agents had praised the complainants' management skills and had actively encouraged the complainants to apply for the Deputy Principal post.

2.6. It was submitted that the respondent had requested that an applicant's date of birth be inserted in the application form. It was submitted that this was illegal and the complainants queried why, if age was not relevant, such a question would have been even asked?

2.7. It was submitted that the application form was deliberately limiting, giving a restricted amount of space to outline qualifications and experience, and a disproportionate space to theory and vision. It was submitted that the overall layout of the form favoured the younger candidate.

2.8. It was submitted that the normal criteria of short-listing was abandoned. It was submitted that only outside candidates were required to have management experience while only the minimum teaching requirement was required from in-house applicants, all of whom were short-listed for interview. The complainants submitted that this 'lowering of the bar' was deliberately contrived to include younger candidates who did not have management experience and who would not normally be called for interview. It was submitted that the appointee who had failed to obtain an Assistant Principal post in the previous couple of years, was thus short-listed for interview. It was submitted that this was a deviation from the normal, good practice that implies a bias towards a favoured candidate from the outset.

2.9. It was submitted that the respondent used a minimalist interview panel to facilitate the appointment of the younger, favoured candidate towards whom the complainants submitted the Chief Executive Officer showed a bias by including her in the short-list. It was submitted that the interview board would not have had sufficient knowledge of the school to understand its requirements. It was submitted that the Chief Executive Officer showed his bias towards the younger candidate from the outset at the interview. It was further submitted that the fact that there interview panel did not consist of 5 members meant that there was no competent independent person capable of challenging the Chief Executive Officer's biased opinion. The complainants believe that the panel was merely going through the motions to appoint the respondent's favoured candidate. They also feel that the panel lacked the experience and qualifications to adequately question the older experienced candidates and consequently denied them the opportunity to present themselves in their best light. It was submitted that in such circumstances an older candidate could not perform to their best ability and that such a panel favoured younger candidates.

2.10. It was submitted that each candidate was allocated a very short period of time. It was submitted that such a short time (25 min for interview, 6 minutes for presentation) was wholly inadequate to assess the merits, qualities and experience of the older candidates. It was submitted that no probing questions were asked and that the questions were very limited.

2.11. It was submitted that upon entering the interview the complainants were surprised to see such a small interview. The interview that followed was described as a very casual, almost flippant interview with vague questions such as: "Are schools a democracy?" The first named candidate maintained that she was asked questions that she described as being limited in range and of a narrow technical or hypothetical nature. She submitted that they lacked the probing edge required to differentiate between candidates at a senior management level in education. Furthermore, she was not asked about what motivated her to apply for this job but submitted that she had information that the successful candidate was asked to tell the panel about herself and told not to include any information about her information technology skills as the panel was already familiar with this. The second named complainant submitted that when she tried to bring her answers to her own areas of experience and expertise, the Chief Executive Officer interrupted her and moved on to the next topic. She also stated that due to the nature of the questioning she had to waste valuable time by having to clarify with the panel what aspect were they referring to. She submitted that the interview panel never even alluded to her position as programmes coordinator.

2.12. Both candidates submit that there are no exact interview records. The complainants submitted that when they compared the interview notes they discovered that the candidates were not asked the same questions. Both candidates submitted that they were cut short by the Chief Executive Officer and were not provided with an opportunity to elaborate on matters. The first named complainant submitted that the panels refusal to allow her to elaborate on school policy - she has a diploma in school development planning and the successful candidate does not - meant that she received no marks for her strengths in this important area. She maintained that this exclusion of qualifications and proven track record in the kind of tasks necessary for the post treated her less favourably than the successful candidate and this discriminated against her since a proven track record and qualifications are achieved over time and with age. For example, the first named complainant submitted that under the heading 'capacity to meet the needs of the position' she received 17 out of 20 points. She stated that bearing in mind her well presented application form, her insightful presentation at the start of the interview, her academic qualifications and experience, her strongly demonstrated deep knowledge and practical experience of the essentials of management, competency in planning, etc. the above mark indicates that she has been treated differently and discrimination on the ground of age occurred. The second named complainant submitted that under the heading 'relevant experience' she received 12 marks out of 15. She has been working as a teacher for 33 years and during this time she has, inter alia, worked with several educational bodies, been involved in professional bodies, etc. Given the breath and depth of her relevant experience, compared with that of the younger candidate, the complainant cannot see how she could have received mere two more marks than her. It was submitted that this was age discrimination.

2.13. Furthermore, the complainants expressed concern about the lack of clarity in relation to the awarding marks. It was submitted that there was a delay in receiving a breakdown of the complainants' marks. The complainants had queried whether marks were awarded at short-listing stage and stated that they had been told that no marks were awarded at short-listing. The complainants refuted this and submitted that it is clear that marks were awarded for qualifications, relevant experience, etc and yet that no such issue was explored at the interview. The complainants therefore submit that a number of questions remain unanswered in relation to how marks were allocated at the interview. The first named complainant stated that bearing in mind the quality of her responses to the questions combined with her proven track record in education and the depth of experience she could not understand how she could have scored lower than the successful candidate unless she was scored down because of her age. It was submitted that there was a lack of objectivity, fairness and good practice in relation to the appointment of the Deputy Principal.

3.14. It was submitted that the first complainant has shown that she is better qualified and has more relevant and extensive experience than the successful candidate. The complainant disputed, inter alia, the marks she received for information technology. She submitted that her skills were equivalent or higher than the successful candidates. It was submitted that statistically speaking the average age for appointment is 40-45 years and that the length of experience required is normally over 15 years. It was submitted that by appointing a applicant with less than 10 years experience there was a break with the norm. The second named complainant also submitted that she is better qualified and has more relevant experience than the successful candidate. She stated that she has been discriminated against on the basis of age at all stages of the interview process and that key information which highlighted important information about her were omitted due to the superficial questioning.

3. Case for the respondent

3.1. The respondent employs almost 700 staff. It was submitted that during 2007 approximately 100 interview boards were convened for both recruitment and promotion competitions by the respondent. It was submitted that since the Vocational Education Act, 2001 recruitment and promotion of VEC staff is an executive function that is carried out through the human resource section of the VEC.

3.2. The respondent submitted that it takes its selection and recruitment most seriously. It prides itself in professionalism and continuously seeks to renew and develop its processes to reflect best practice.

3.3. It was submitted that interviewing as a means of selection is widely acknowledged as not being an exact science. It was submitted that the interview board had a proven track record at interviewing, had individual character to make their own judgment and had a deep understanding of the position and had prepared well. The board had the applicants' application forms one week in advance. Any allegation that the board members are not qualified for their role was strongly disputed. It was submitted that the boards for interview promotion posts vary depending on availability of interview board members and the structure required. Any suggestion that the interview board had personal or other reasons to favour the successful candidate were strongly rejected.

3.4. The respondent denies any age discrimination. It was submitted that the respondent has no control over the age profile of candidates applying for its positions. It was submitted that the date of birth question on the application form was an oversight. The respondent refutes the contention that the interview board would have their judgment distorted by being aware of the date of birth by the candidates. It was submitted that the reverse argument could be made in relation to younger candidates in circumstances where an older candidate had been successful.

3.5. The respondent submitted a table of candidates appointed to Deputy Principal between 1997-2007. This table, consisting of 13 appointments, indicates that the age of the successful candidate varied between 31 to 51 years. The length of teaching experience varied between 9-28 years. It was submitted that the successful candidates present a fair profile across gender, experience, varying teaching background and varying pathways to the promotion position. It was submitted that the respondent filled 3 Deputy Principal posts in the summer of 2007. The successful applicants were in their 30s, 40s and 50s. The respondent submitted that it is quite uncomfortable with an age comparison exercise as the age of candidates has never been a criterion. It was submitted that the three recruitments cited above epitomise the respondent's approach to recruitment. It was submitted that the aim of the recruitment process is to secure the best person for the required post irrespective of age, gender or any other ground. During the summer of 2007, two of the interview board members sat on the other two Deputy Principal boards. It was submitted that if a predisposition to appoint the youngest candidate or younger candidates was an inherent attribute in the appointment process this would have also come through for other appointments especially as two board members were common to all three boards.

3.6. It was submitted that all candidates were treated the same, irrespective of age. It was submitted that the board asked some identical questions and some varied questions as the Board felt necessary to fulfil their duty.

3.7. It was submitted that the complainants have relied mistakenly on the provisions of Circular Letter 43/00 as applied to middle management promotion posts and which gives 30% of marks for seniority. It was submitted that there are no marks for seniority for Deputy Principal posts. It was submitted that the post for Assistant Principal and that of Deputy Principal are two very different roles.

3.8. It was submitted that the interview panel was exactly in accordance with the requirement set out in Circular 43/00. It was submitted that any deviation from that composition would have rendered the exercise open to challenge by the Teacher's Union of Ireland and would have invalidated the process. The only allowance in the Circular letter for another person to be in the room is for the person acting in a secretarial manner.

3.9. The respondent denied that it excluded any vital information about the complainants during the interview and/or selection process. It was submitted that the marks awarded to the complainants indicate this. The respondent had viewed the application forms and the second complainant's curriculum vitae prior to the interview and did not view the interview as an opportunity to receive a repeat rendition of the information it already had about the candidates. The aim was to explore what was behind those forms and how the candidate interacted and communicated with the board.

3.10. The respondent submitted that probing questions were asked. It took issue with the authenticity of the first complainant's contemporaneous notes that had been submitted to the Tribunal. With regard to the interview, it was submitted that it followed the normal pattern of interview boards where members will ask the candidates the question they have agreed among themselves to ask and depending on the answer, they may ask more specific questions. Therefore, no two interviews will be exactly identical. The core questions, agreed before the interviews, were asked of all candidates.

3.11. The respondent denied that there was a favourite candidate from the outset and that there was a bias in the process at every stage. The process was carried out in order to facilitate the interview board in selecting and appointing the best candidate for the job. It was submitted that the Human Resource Department handled every aspect of the process including the advertising, short-listing, collation of applications, preparation for the interview location and drawing up the interview panel, etc. It was submitted that every step of the recruitment process was proper and considered. While the Chief Executive Officer has overall responsibility for the overall efficiency and effectiveness, the functions are carried out by the Human Resource Department.

3.12. Any allegation that the respondent was influenced by a third party or that agents of the respondent groomed the successful candidate were vehemently rejected. It was submitted that many of the points raised in the complainants' submissions have no relevance to any claim of age discrimination. It was submitted that no candidate was overlooked and all candidates were given equal opportunity to participate in the process. The decision was made on merit and the applicants were only awarded marks on the material that the board had before them at the interview.

4. Conclusion of the equality officer

4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' (Mitchell v Southern Health Board [2001] ELR 201) before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters (EDA/0917) where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule". I considering this case I have taken note of the extensive written and oral submissions.

4.2. It is clear from the evidence heard by this Tribunal that many matters are in dispute. It is also clear to subsequent to the interview and the selection of the successful candidate, a number of individuals on the respondent Board were approached by the unsuccessful candidates and allegations of unlawful discrimination were made. It is important to bear in mind that it is a matter for this Tribunal to determine whether unlawful discrimination contrary to the Acts has taken place. It is therefore regrettable that such allegations have been made in public and persons who have no legitimate reason to be involved in the selection and appointment process have been approached and included in the dispute. Personal remarks have been made about the professionalism of the respondent and its agents and servants and the successful candidate. This has understandably inflamed the dispute even further. The Tribunal heard statements from persons appearing on behalf of the complainants who had attended the meeting where some of these allegations had been made. The Tribunal also heard from the respondent's Chief Executive Officer. He stated that he felt compelled to attend this meeting - despite the fact that recruitment was not a matter for the Board - bearing in mind the seriousness of the allegations that had been made about him and his office. The delay in getting back to the complainants was due to him being on annual leave. It is clear that this meeting was fractious with the Chief Executive Officer defending his Executive functions and with various Board members and Union representative seeking clarification on behalf of the complainants. In such circumstances, it is impossible to decipher what was a statement of fact and what a mere assertion. I accept that age discrimination was the topic of the said meeting but cannot view such as evidence of an admission that something unlawful had occurred during the recruitment and selection process.

4.3. It is clear that both complainants firmly believe that they were respectively better candidates than the successful candidate. It is also clear that the complainants are older than the successful candidate. The Tribunal heard extensive and lengthy evidence in relation to this. It is clear that both complainants have broad experience and expertise in the education sector. This fact is not in dispute and the respondent acknowledges that the complainants were both excellent candidates and both would have been eligible for the position. It was submitted that in another interview either complainant may have been successful in a similar competition but that in this particular interview process the successful candidate was an outstanding applicant. The complainants take exception to the fact that a person with much less experience in education in general and an Assistant Principal position in particular could be selected for the post. This, they collectively submit, constitutes age discrimination.

4.4. It is important to note that it is not a matter for this Tribunal to assess whether the successful candidate was the best person for the job. The Tribunal's jurisdiction only extends to an investigation whether the process applied, in this present case on the grounds of the complainant's age, was discriminatory. It cannot concern itself with the personal characteristics of the candidates, for example, organisational skills, ability to show leadership, etc. Davis v. Dublin Institute of Technology is the current authority in relation to selection at interview. Here the High Court determined that a 'significant difference' between a successful candidate and a successful applicant needs to be shown by the complainants before an inference of discrimination can be drawn. The complainants submitted that they had better and more qualifications than the successful candidate. I note that the complainants argued that qualifications are linked to age and by not placing more emphasis on qualifications the process was less favourable to them. There is no evidence to support an argument that a person's age equates to more qualifications. Such an argument is specific to the complainants own personal traits. It is clear that both complainants have obtained more qualifications than the successful candidate and that they received higher marks accordingly. However, the outcome of this interview was not dependant on one criteria. Seven broad competencies were required and applied. I have found no evidence of significant difference. Indeed, there is mere 5 points between the successful candidate (86 out of 100) and the complainants (each received 81 out of 100).

4.5. It was submitted that the successful complainant ought to have received lower marks than what she was given. The respondent submitted that the aim of the interview is to identify the best candidate and that care would also be taken in relation to the candidate who is to be placed second. This is in order to safeguard the appointment process in situations where the successful candidate declines the offer. Marks will therefore be awarded more generously to candidates who do not reach the top marks in whichever competency category is being considered. In other words, the best candidate in a category will be awarded the highest marks and others will be placed below them. No great emphasis will be placed on how much is awarded to those who fall below. The respondent submitted that the aim of the process is not to crush anyone. I note that both complainants received the higher marks than the successful candidate in the 'qualifications' and 'relevant experience' categories. No evidence of age discrimination can be drawn from the allegation that the successful complainant should have, in the complainants' view, being given lower points.

4.6. I note that the second named complainant submitted that the design of the application form was such that it did not allow for her to elaborate on her vast experience and that she had to submit her curriculum vitae alongside the application form to ensure the interview board would obtain the information she wanted to bring to its attention. While she acknowledged that she was aware that she could have filled the form on a computer - thus allowing her to extend the areas to allow for her to elaborate - she stated that due to limited internet access in her area she chose not to. She submitted that she had a right to submit her application in handwriting. While this Tribunal is not aware of a legal right to submit applications in hand-writing, it is clear that the complainant's application was accepted as it was. No evidence was provided to support an argument that her curriculum vitae was ignored or given less consideration than the other applications. Therefore, I have not been provided any evidence to support an argument that the complainant experienced less favourable treatment in relation to the application form. Neither complainant was able to adduce any evidence to support an argument that their application form had not been considered in the selection process.

4.7. In relation to the actual interviews. It was submitted by both complainants that due to the truncated nature of the interview they were denied the right to demonstrate their superior knowledge and experience that they had amassed during their years working in the educational sector. It was submitted that such an approach favoured younger candidates who would not have more than a superficial knowledge of the complex issued probed and would be thus better equipped to respond in an brief manner expected by the process. It was submitted, for example, that a comprehensive reply to 'democracy in schools' would require a longer reply period from persons who thoroughly understood the concept. Furthermore, it was suggested that such understanding required years of experience. I reject such an ageist argument and accept that the purpose of an interview is, among other things, to get an understanding of a candidate's ability to appreciate the interviewees' prior knowledge of the subject and to be able to edit the answer to whatever the germane issues concerning said topic for the candidate are. Such ability is in itself a skill that the process aims to assess. I note that the first complainant took over 45 minutes to explain her professional experience and qualifications at the hearing despite the fact that the Tribunal had been provided with copies of her application form and had not asked for such input. No evidence linking age with the need for longer reply periods was presented.

4.8. The argument that the interview ought to have been longer for such an important position is not in itself a matter of age discrimination. It is a policy argument relating to best practice which is not a matter for this Tribunal. The suggestion that more experienced and thus older candidates ought to be given more time to demonstrate their experience could be that of positive action, that is, more favourable treatment. While such action is allowed under the Acts, it is important to note that significant justification for such action in relation to age would have to be demonstrated. I have been presented with no such justification and do not accept that older people, because of their age, require longer reply periods. I also note from the statistic provided by the respondent that in other promotion competitions older candidates have been appointed to such positions and that no evidence was provided to support an argument that such candidates were provided with longer interviews or that there was a need for such an approach (to assist them achieve the position).

4.9. It was submitted that the chairperson constantly interrupted the first complainant during her interview. Yet again this was linked to a suggestion that she was denied the opportunity to respond in a manner suitable to her. It was suggested that this was done to put the complainant off the interview. The second named complainant submitted that the interview was so ridiculous that she replied some of the questions in a what she described as a flippant manner. The respondent submitted that they may have interrupted a candidate who was swaying off the topic to ensure that they were able to ask the required questions and keep to the allocated time. I find that these arguments are linked with the complainants personal performance at their own interview and are not a matter for this Tribunal. No compelling evidence of inappropriate questions relating to age or significantly different approaches in relation to the manner in which the interview was presented.

4.10. I note that the second complainant stated that at the end of her interview the chairperson of the panel remarked that the position of the Deputy Principal ought to go to a person with superior information technology skills. This was disputed in direct evidence by the chairperson as well as by the other panel members. It was suggested that this comment suggested an age bias and/or the fact that the panel had already agreed who the successful candidate would be. I do not accept that such a statement could be construed as evidence that a candidate had already been chosen. It is clear that both candidates where surprised when they heard the name of the successful candidate and that it has been on reflection that these arguments have come to light. It is clear that some information technology literacy was required by the respondent. The marking template contained 7 criteria, totalling 100 marks. ICT skills constitute 10 marks, 10% of the overall competition. No evidence was presented to support an argument that ICT skills was not a requisite requirement for the post of Deputy Principal. I am satisfied that the post requires ICT skills and that persons in the complainants' age category are not disadvantaged by virtue of their age because of such a requirement. I note that the first candidate stated in her evidence that she possessed similar information technology skills than the successful candidate and that she takes exception to the fact that she got 8 points out of 10. It is not for this Tribunal to assess who deserved higher marks for the ICT part.

4.11. The issue of the request for a date of birth on an application form. I note that the respondent accepts that such information was not necessary and ought not have been included in the forms. I accept that good practice dictates that personal information should not be included on application forms, unless the employer can show a justification for the need for such information. However, the mere presence of such a question is not enough to create an inference of age discrimination. It is clear that an curriculum vitae or application form will reveal information about a person's approximate age. It is also clear that an interview panel - when face to face with a person - can and will make certain presumptions of a person's age. This does not mean that they will automatically discriminate. Also, both candidates had worked with the respondent for a number of years and, as a result, the respondent would have some inclination of the complainants' approximate age. Merely stating such facts - that the complainants included their date of birth on an application form - is not enough for an inference of discrimination to emerge.

4.12. Furthermore, the complainants submitted that there was a lack of transparency in that one set of the interview notes were lost and because comprehensive notes were not taken. I accept that the notes are not comprehensive and that one set has been lost. I note that the board were meticulous in recording the time allocated to parties and kept brief notes of the areas to be covered by each interviewee. I see nothing in the notes to suggest age discrimination or inappropriate conduct. There is no law suggesting that comprehensive notes must be kept but good practice does recommend it. Where possible, I would recommend that the respondent avail of the right set out in the Circular to use a secretary. In this case, the Tribunal heard direct evidence from the panel members and the complainants were afforded the right to cross-examine them.

4.13. The complainants have been unable to establish a justification for why the role should require, in a manner that does not actually show an age bias in favour of older candidates, more emphasis on qualifications and experience. There is no evidence to suggest that the successful candidate did not have the required qualifications and experience. It is clear that the complainants argument is heavily influenced by the Assistant Principal post experience and made reference to the fact that the successful applicant had failed to obtain such an appointment previously. It became clear during the hearing that an appointment to an Assistant Principal post is linked to seniority. Such an approach, which this Tribunal understands is a result of an industrial relations agreement, openly favours an older candidate by affording the highest percentage (30%) to the person with the highest number of service. While this is not enough on its own for a person to be appointed to an Assistant Principal post, the other requirements such as 'Experience of a professional nature' (20%), depending on how such a definition is interpreted, can also be heavily influenced by the length of time the candidate has worked in the sector. It is clear that the selection process for a Deputy Principal post is not seniority led and that the respondent applied a competency-based open competition selection process. Such a process will always lend itself to discretion that an interview panel may exercise.

4.14. I find that the whole concept of the named information technology company having undue influence on the respondent to be, quite frankly, fantastic. Why would such a company care what age the Deputy Principal of the respondent school is and/or why would such a company have an age bias towards younger candidates? And why would the wider organisation - the respondent - be influenced by such? It is worth noting that the company's involvement with the school began in 2003. The successful candidate had been the ICT coordinator since 2000 and it seems logical that she would have been involved in the project by virtue of her position in the school. There is no evidence that the respondent colluded with the named company. There is no evidence that the of the respondent had anything to do with the company other than participate in the project which presumably has been beneficial to the student body and provided the company with positive publicity. There is no evidence that the school excluded older candidates from the project in favour of younger candidates. The complainants have not shown any evidence to support an argument that they would have been excluded if they had expressed an interest to get involved. I am satisfied that the project was open to any staff member who was willing to take on the extra work. I note that the respondent recognised that Assistant Principals have such heavy workloads that they could not be expected to take on the extra work and that this is the reason why none where directly approached about it. I do accept that a named Assistant Principal had come forward and had been involved. While there is no evidence to suggest that the project played any role in the recruitment process, it is worth pointing out that rewarding a person for their extra work does not constitute age discrimination simply because that person is younger. Such treatment is linked with the extra work, not the persons age. For an inference of age discrimination to arise, the complainants would have to show a nexus between the protected ground and the treatment. No such inference can be drawn from the facts of this case.

Decision

5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:

5.2. I find that the complainants have not established a prima facie case of discrimination on the age ground. Therefore, the cases fail.

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Tara Coogan
Equality Officer
9 August 2010