EQUALITY OFFICER'S DECISION NO: DEC-E/2010/115
PARTIES
WARD
(REPRESENTED BY THE AHCPS)
AND
THE DEPARTMENT OF COMMUNICATIONS, ENERGY AND
NATURAL RESOURCES.
File No: EE/2007/248
Date of issue: 28 June, 2010
Headnotes: Employment Equality Acts, 1998-2007 - sections 6 and 8 -age - discriminatory treatment -conditions of employment - promotion - prima facie case- rebuttal evidence
1. DISPUTE
This dispute involves a claim by Mr. Peadar Ward that he was discriminated against by the Department of Communications, Energy and Natural Resources ("the respondent") on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts when it failed to appoint him to the position of Principal Officer in November, 2006. The respondent rejects the complainant's assertions in their entirety.
2. BACKGROUND
2.1 The complainant is an Assistant Principal Officer in the civil service assigned to the respondent. In October, 2006 the complainant applied for an internal competition for promotion to the position of Principal Officer. He attended for interview and was advised on 24 November, 2006 that he was unsuccessful. He contends that he was better qualified that the two candidates who were appointed following the competition - both of whom were younger than the complainant - and submits that he was discriminated against by the respondent on grounds of age contrary to the Acts. The respondent rejects the complainant's assertions.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 18 May, 2007. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 28 August, 2009 - the date the complaint was delegated to me. Submissions were received from both parties and a Hearing of the complaint took place on 21 January, 2010. A small number of points arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties until early March, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he is a career civil servant with over 33 years' service, nine of which is at the grade of Assistant Principal. He adds that at the time of the impugned competition he had nine months experience as Acting Principal Officer (October, 2005 - July, 2006) - a position he had been appointed to by the respondent following an interview based selection process confined to eligible staff within the respondent Department. The complainant states that the respondent announced a competition for promotion to Principal Officer on 9 October, 2006 and he submitted an application. He adds that the Personnel Notice (No. 41/06) governing the competition stated that it would comprise "a structured competency based interview, which will incorporate standardised questions and follow-ups as well as a period of free questioning" which would enable the Interview Board examine a candidate on what s/he had achieved in his/her career to date in relation to the required skills/competencies for the position. He states that he had considerably more experience (both generally and at the level of Assistant Principal) than either of the two successful candidates - one of whom had only two years' service (the minimum required to be eligible for the competition) at Assistant Principal level and the other had approximately five years' service at that level. He adds that the former was over twenty years younger than him (at the time) and the latter was around fifteen years his junior. The complainant states that although the Personnel Notice did not set any specific academic requirements for the post of Principal Officer he had obtained a MA in Industrial Relations. In addition, the competition provided for an "Overall Assessment of Performance" of each candidate by his/her First Supervisor (and if appropriate Second Supervisor). The complainant states that he awarded an overall assessment of "Outstanding" which is the highest grade that can be awarded and places him in the top 10% of Officers in that Grade. It is submitted on the complainant's behalf that he was eminently qualified for promotion to the position of Principal Officer and the failure of the respondent to do so constitutes discrimination of him on grounds of age.
3.2 The complainant states that he attended for interview in early November, 2006. He adds that the Interview Board comprised two Assistant Secretaries from the Department and an Independent Chairperson from outside of the Civil Service, that the interview lasted about forty minutes and that he was not asked any questions which he considered might demonstrate a bias on the basis of age. He states however, that he was "thrown" at the early part of the interview, adding that Mr. B asked him a question and when he attempted to answer - citing an example from his experience in the Marine area(s) of the Department - he (Mr. B) interrupted the complainant immediately and asked for another example. The complainant states that for the remainder of the interview he felt there was a distinct lack of interest and an air of indifference by the Interview Board when he used examples from his Marine/Fisheries experience. He further states that both the Chairperson's and Mr. B's notes of the interview state that an example offered by the complainant in response to a question was "an old example" and " was 15 years ago" respectively. He adds that the Chairperson omitted, at the end of the interview, to ask him if he wished to add anything instead asking him "is there anything you wish to ask the Board". In the course of the Hearing the complainant stated that he did not raise his concerns with the Board at the time because of its demeanour toward him.
3.3 The complaint takes issue with the marks awarded to him at interview across the seven competencies indicated and contends that they do not reflect a true representation of the skill, knowledge and experience he possesses. He adds that a few days after the interview he met with Mr. P (another member of the Interview Board) for feedback on his performance. He states that Mr. P identified his (the complainant's strengths) from within the seven competencies and the complainant states that the marks awarded to him under those categories are only 2/3 marks lower than those competencies which were not considered his strengths. The complainant adds that Mr. P also informed him that "competition was high" and that "the Board were marking low so as to not confine themselves as the interviews progressed". The complainant states that he was one of the last candidates to be interviewed and states that given the low marks he received across the competencies he contends he was deliberately marked low.
3.4 The complainant states that he was the oldest candidate in the competition. He adds that 4 of the candidates - representing 27% of those interviewed - were over 48 years of age and none were placed on the Panel. He further states that the same numbers of candidates were under 41 years of age and two of them were promoted with another placed on the Panel. The complainant adds that of three of the four youngest candidates in the competition were placed first, second and fifth on the Panel whereas the only other candidate (apart from the complainant) over fifty years of age was awarded fourteenth place. He submits that these statistics demonstrate a pattern which support his assertion that the respondent favoured younger candidates in the impugned competition.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions that it discriminated against him on grounds of age contrary to the Acts. It accepts that the complainant was the oldest candidate interviewed, that the successful candidates were (respectively) around twenty years and fifteen years younger than the complainant and the successful candidates had the level of service contended by the complainant. It states that the competition was conducted in an open, fair and objective fashion which is consistent with best HR practices - in particular the Commission for Public Service's Code of Practice for appointments to positions in the Civil and Public Service. It adds that the Personnel Notice (No. 41/06) clearly set out the terms of the competition and outline the seven pre-determined competencies across which candidates would be assessed and more detailed information on what these competencies covered was provided at an Appendix to the Notice to assist candidates. The respondent states that these competencies are ones which would generally be considered appropriate for the position of Principal Officer in the Civil Service. It adds that they were decided by the HR Division and signed off by the Personnel Officer in advance of the competition. The relative weighting of marks between each competency was suggested by HR Division and finalised by the Interview Board in advance of the interviews commencing. The respondent states the Interview Board comprised three people - two of whom were internal Assistant Secretaries - contained male and female members and had an independent external Chairperson. Two of the Board members were over fifty years of age. All three Board members had previous experience as members of Interview Boards and were trained in competency based interview techniques and equality issues. It adds that the Interview Board was assisted by a Secretary who recorded comprehensive notes of each interview and Board members recorded their own notes separately. The respondent states that candidates were asked broadly similar questions, that the Interview Board discussed each candidate at the end of the interview and a consensus was reached by the members as regards the mark the candidate was to be awarded under each of the competencies. It contends that the competition was conducted in an objective fashion and submits that the complainant was not treated less favourably in the course of the selection process on the basis of his age.
4.2 The respondent rejects the assertion that the statistics in respect of the competition demonstrate a bias against older candidates. It accepts that the two candidates appointed from the competition were under forty years of age but points out that one of those candidates had originally been placed fourth on the Panel and only achieved second place when marks for competency in Irish was added. The respondent states that the award of these additional marks is not at the discretion of the Interview Board and the Board is unaware of which candidates, if any, is entitled to claim these marks. The respondent further states that four candidates were placed on the Panel after the competition - two of these were in the age group 46-50 and represents a 50% success rate for candidates from that age cohort. It submits that the data in respect of the impugned competition does not provide a basis upon which an inference may be drawn that the ages of the candidates was a factor influencing the Interview board's decision.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the Department of Communications, Energy and Natural Resources discriminated against Mr. Ward on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts when it failed to appoint him to the position of Principal Officer following interview in November, 2006. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 - 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment on the grounds specified. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required his case cannot succeed.
5.3 The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. It is settled law that the probative burden shifts where a complainant proves facts from which it can be presumed that s/he has suffered discrimination. It is also settled law that it remains for this Tribunal to decide, where the primary facts as alleged are proven, if they are inference or presumption contended can be properly drawn from them. This entails a consideration of the conclusions which may appropriately be drawn to explain a particular fact (or set of facts) which have been proven in evidence. The initial probative burden required of the complainant is to establish a prima facie case. It is therefore not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proven facts. It is sufficient that the presumption is within a range of inferences which can reasonably drawn from those proven.
5.4 In the instant case the following facts have been agreed or proven in evidence:
the complainant was the oldest applicant in the competition.
the complainant had around 33 years' service in the civil service. The successful candidates had 7 years and 16 years' service respectively.
the complainant had (at the time of the promotion process) nine years' service at Assistant Principal Officer level. The successful candidates had 2 years (the minimum required to be eligible for the competition) and 5 years' service respectively at that level.
the complainant had acted up to the position of Principal Officer for nine months (October, 2005 - July, 2006) - an assignment he had obtained following an internal interview. Neither of the two successful candidates had any such acting up experience.
the complainant received an assessment rank of "outstanding" and a recommendation of "well qualified for promotion" by his Line Manager in the assessment process conducted as part of the competition.
the complainant was twenty years older than the candidate placed first on the Panel and fifteen years older than the candidate placed second.
the successful candidates were the second and fourth youngest (respectively) of those who attended for interview.
the complainant exceeded the pass mark (50% of the marks available in respect of each competency) on each of the seven competencies across which candidates were assessed and was ranked seventh overall but was not placed high enough to be empanelled.
the second oldest candidate was ranked fourteenth out of fifteen candidates after interview.
three of the four youngest candidates were ranked first, second and fourth after the interviews.
I light of the foregoing I find that the complainant has established a prima facie case of discrimination on grounds of age contrary to the Acts and the probative burden shifts to the respondent to rebut the inference raised.
5.5 In order to rebut the inference of discrimination the respondent must provide a convincing non-discriminatory explanation for what occurred. That explanation must satisfy the Equality Officer, as a matter of probability, that the less favourable treatment complained of was not connected in any way with the age of the candidates. The parties agree that the competition was governed by Personnel Notice PN41/06. This document was furnished to the me in the course of my investigation. The Notice clearly states that candidates would be assessed across seven pre-determined criteria and indeed it gave some further details of what each criterion might cover in order to assist candidates prepare. The Interview Board comprised three members - two males and a female. Two of the Board member were in the same general age bracket as the complainant. All three had previous significant experience on Interview Boards, were trained in competency based interview techniques and had completed a module on equality legislation. Prior to the interviews commencing the Personnel Officer and the members of the Board discussed and agreed the marking scheme for the competition. In light of the foregoing I am satisfied that the respondent conducted its business as regard the pre-interview aspects of the competition, in a fair and objective manner which was in line with accepted good practice.
5.6 The complainant states that he was "thrown" early on in the interview when Mr. B interrupted him when responding to a question and asked him to provide a different example. Whilst I accept the complainant's evidence on this point I cannot conclude that Mr. B's reaction can be construed as discriminatory on grounds of age. Indeed I note the complainant confirmed at the Hearing that he was not asked any question which is considered to be discriminatory on the basis of age. The complainant states that for the remainder of the interview he detected an air of indifference from the members of the Board. However, he adduced no evidence to substantiate that allegation. The respondent furnished the Tribunal with notes taken at interview by the Secretary to the Board (who was not involved with the selection process) and by individual members of the Board in respect of the two appointees and the complainant. I have examined these notes and I am satisfied, on balance, that all three were asked broadly similar questions, that the complainant was given the same opportunity to demonstrate his suitability for the post as the successful candidates and that there was no unfairness in the manner in which the interviews were conducted. The complainant states that the notes of both the Chairperson and Mr. B contains the comments "an old example" and " was 15 years ago" respectively in relation to an example he offered in response to a question. The notes do contain these comments. However, I do not accept that they demonstrate a bias against the complainant because of his age, rather I consider it more likely that they reflect the bone fide opinion of those Board members that one might expect a candidate of the complainant's experience to offer an example during the time when he was an Assistant Principal Officer (and Acting Principal Officer) instead of one when he was a Higher Executive Officer.
5.7 The complainant takes issue with the marks awarded to him at interview and states that the small difference in marks for those competencies which the Interview Board considered were his strengths, when compared with those that was not considered strengths, support his assertion that he was discriminated against. I have examined the marks awarded to the complainant and agree that there is little difference (a couple of marks) between the marks awarded to him in those competencies which the Board indicated (in a written report setting out its overall comment on the interview - copies of which were furnished by the respondent for the complainant and the two successful candidates) were his strengths and those which were not. I have examined the reports and marks in respect of the two successful candidates and I am satisfied that the Board adopted a similar approach in respect of them. It follows, therefore, that the complainant was not treated less favourably than those candidates. The complainant asserts that in the course of obtaining feedback form Mr. P, he (the complainant) was informed him that "competition was high" and that "the Board were marking low so as to not confine themselves as the interviews progressed". I accept the complainant's uncontested evidence in this regard. However, I note that both the successful candidates were interviewed before him. In those circumstances it would appear that they would also have been subject to the "low-marking" process. Consequently, I am not satisfied that the complainant was treated in a less favourable manner on this issue.
5.8 The complainant submits that the data furnished by the respondent as regards the ages of the candidates who attended for interview, supports his assertion that the Interview Board operated a bias in favour of younger candidates over older ones. Statistical evidence must be approached with a degree of caution. In particular, I must be satisfied that are valid and reliable - in that (i) they cover enough individuals, (ii) they are not influenced by purely fortuitous or short-term phenomenon and (iii) that, in general, they appear significant. The data submitted by the respondent shows that four of the fifteen candidates were under 40 years of age at the time of the competition - representing 27% of those interviewed. Two candidates, including the complainant, were over fifty years of age. Of the remainder four candidates were in the 46-50 years of age bracket. Four people were placed on the Panel at the conclusion of the competition. Two of these candidates were under forty years of age - representing 50% of that age cohort and two were aged between 46-50 years of age - also representing 50% of that group. The data also discloses that at the end of the end of the interview process the candidate placed first was under forty years of age and the candidates placed second and third were in the 46-50 years of age bracket. This changed when the marks for competency in Irish was subsequently added in by the HR Division - a process which resulted in the candidate placed fourth after interview leapfrogging into second place. The respondent states that the award of the additional marks for Irish is not at the discretion of the Interview Board and a signed copy its recommendation (signed by all three members) of the candidates for inclusion on the Panel after interview - a copy which was opened to the Tribunal - corroborates this. I also note that the youngest candidate was ranked ninth overall - a placement that was also assisted by marks for competency in Irish. In light of the foregoing I find that the statistical data does not avail the complainant.
5.9 Both Equality Officers of this Tribunal and the Labour Court has held on many previous occasions that it is not our role to examine whether the most meritorious candidate was successful in a promotion process, rather it is our role to examine and decide whether or not the selection process is tainted by discrimination - in this case age. In light of my comments in the preceding paragraphs I am satisfied that the respondent had rebutted the inference of discrimination raised and I find that the respondent did not discriminate against the complainant contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find the respondent did not discriminate against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts when it failed to appoint him to the position of Principal Officer in November, 2006 and his complaint fails.
_______________________________________
Vivian Jackson
Equality Officer
28 June, 2010